DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
Claims 1-16 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 1 and 16, the phrase “said resonator cavities each arranged to absorb from said ear canal an acoustic frequency below 1000 Hz and combine to reduce said occlusion effect OE at frequencies below 1000 Hz,” is indefinite, as resonator to not “absorb” sound, rather it damps or dissipates or attenuates sound through reflection/oscillation/etc... of the sound waves within the resonator cavity.
Further, it is unclear what is meant by the “and combine to reduce said occlusion effect OE at frequencies below 1000 Hz”. In this wording, the expression "combine to reduce" has no clear technical meaning. In particular, it is not clear what exactly is supposed to be "combine", namely whether this refers to the resonator cavities themselves, to the frequencies allegedly absorbed by them, to acoustic effects produced by them, or to some other quantity. Still further, is it clear what is meant by “absorb from said ear canal", namely whether the claim refers to sound present in the ear canal volume, to sound generated by the ear canal wall, or to some other acoustic phenomenon or source associated with the ear canal; rendering this language indefinite.
For the rejection, the term “absorb” will be interpreted as “attenuate” or “reduce”; the “combine to reduce” language will be broadly interpreted as the resonators merely functioning to reduce any sound frequency or frequencies below 1000 Hz at any decibel level, even of an infinitesimal amount; and the “absorb from said ear canal” language will be interpreted as any sound that is present within, adjacent to, or directed toward an ear canal.
Regarding claim 15, the phrase “the cavity portion preferably being partially or fully filled with sound absorbing material “is indefinite, as it is unclear if the limitations following the term “preferably” are required or optional. Applicant should clarify whether these limitations are required or optional. For the rejection, they will be considered optional.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-10 and 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Zwislocki (5,824,967).
With respect to claims 1 and 16, Zwislocki teaches a hearing protection device (Figures 1-2 and 6, #10) providing mitigation of an occlusion effect (OE) (this is considered to be obvious, see note below), the device comprising: for occluding an ear canal of a wearer (see Figure 2) and for providing sound reduction of external noise for preventing hearing loss while working in noisy environments (see abstract), one of: (i) an ear tip (20) for insertion into an ear canal, the ear tip (20) providing a medial surface having a side facing an ear canal (defined by tip surface of earplug inserted into an ear canal and surrounding opening #28 and facing ear canal, similar to Applicant’s); and (ii) an over-the-ear cup having an internal member for covering an ear, the internal member providing a medial surface having a side facing an ear canal; and one or more resonator cavities (defined by tubes #60, when incorporated in the device of Figures 1-2, Col. 8, Lines 6-15) in fluid communication with said side facing an ear canal of said medial surface, said resonator cavities each arranged to absorb from said ear canal an obvious acoustic frequency below 1000 Hz (Col. 4, Lines 50-57; Col. 7, Lines 25-31) and obviously combine to reduce said occlusion effect at frequencies below 1000 Hz.
Regarding the mitigation of an occlusion effect, it is noted that the Zwislocki device completely covers and seals the ear canal (i.e. it is not open to the ambient environment), and can attenuate at least some level of sound in frequencies below 1000Hz (Col. 4, Lines 50-57; Col. 7, Lines 25-31). Note that Applicant’s Specification, [0011] states that “the use of earplugs is usually associated with the occlusion effect, an uncomfortable auditory perception of someone's own voice while talking, chewing, breathing, etc. The occlusion effect occurs when an object covers or fills the outer portion of the ear canal and is most significant at low frequencies (below 1 kHz).” In its broadest reasonable interpretation, Zwislocki is considered to “mitigate” an occlusion effect because it both covers the ear canal and provides noise reduction to the ear canal in frequencies below 1000 Hz in a similar manner to Applicant’s device. The term “mitigates” is also vague and open to interpretation, Applicant’s device appears to reduce an occlusion effect compared to a prior art device, but does not necessarily completely eliminate an occlusion effect. Because the device of Zwislocki can be tuned to different frequencies (Col. 4, Lines 29-67; Col. 7, Lines 25-31), an iteration of the Zwislocki device that attenuates noise in a frequency range below 1000 Hz will certainly “mitigate” an occlusion effect relative to a different iteration that is tuned to only frequencies above 1000 Hz, or another prior art ear plug device such as shown in Applicant’s 1B.
With respect to claim 2, Zwislocki teaches wherein said plurality of resonator (Figure 6, #60) cavities are four in number.
With respect to claim 3, Zwislocki teaches wherein said plurality of resonator cavities (Figure 6, #60) are arranged as adjacent chambers.
Zwislocki fails to explicitly teach wherein said plurality of resonator cavities (Figure 6, #60) are arranged as adjacent parallelepiped chambers.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide wherein said plurality of resonator cavities are arranged as adjacent parallelepiped chambers, since it has been held by the courts that a change in shape or configuration, without any criticality, is nothing more than one of numerous shapes that one of ordinary skill in the art will find obvious to provide based on the suitability for the intended final application. See In re Dailey, 149 USPQ 47 (CCPA 1976). It appears that the disclosed device would perform equally well shaped as disclosed by Zwislocki.
With respect to claim 4, Zwislocki teaches said resonator cavities (Figure 6, #60) can be made of different length so that each resonates with a different sound frequency and are configured to absorb at obvious variable, but unspecified frequencies (Col. 8, Lines 6-15).
Zwislocki fails to explicitly teach wherein said resonator cavities are configured to absorb at about 250 Hz, about 350 Hz, about 550 Hz and about 800 Hz
It would have been obvious to one of ordinary skill in the before the effective filing date of the claimed invention to provide wherein said resonator cavities are configured to absorb at about 250 Hz, about 350 Hz, about 550 Hz and about 800 Hz, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working range involves only routine skill in the art. In re Aller, 105 USPQ 233. In this case, selecting the claimed frequencies would have been obvious to one of ordinary skill in the art so as to tune the device to reduce noise at desired frequencies.
With respect to claim 5, Zwislocki teaches said plurality of resonator cavities (Figure 6, #60) comprise a first resonator cavity (one of cavities #60) tuned for an obvious, but unspecified variable frequency range with a second resonator cavity (another of of cavities #60) tuned to a different obvious, but unspecified variable frequency range the frequency than the first resonator cavity, so as to obviously subsequently reduce the coupling between the first resonator cavity and the ear canal cavity so as to reduce said occlusion effect within a range of 100 Hz to 900 Hz (Col. 4, Lines 50-57; Col. 7, Lines 25-31).
Zwislocki fails to explicitly teach wherein the first resonator cavity tuned for a range of about 225 Hz to 275 Hz with a second resonator cavity tuned to twice the frequency of the first resonator cavity.
It would have been obvious to one of ordinary skill in the before the effective filing date of the claimed invention to provide wherein the first resonator cavity tuned for a range of about 225 Hz to 275 Hz with a second resonator cavity tuned to twice the frequency of the first resonator cavity, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working range involves only routine skill in the art. In re Aller, 105 USPQ 233. In this case, selecting the claimed frequencies would have been obvious to one of ordinary skill in the art so as to tune the device to reduce noise at desired frequencies.
With respect to claim 6, Zwislocki teaches said plurality of resonator cavities (Figure 6, #60) are each in direct fluid communication with said medial surface (defined by tip surface of earplug inserted into an ear canal and surrounding opening #28 and facing ear canal, similar to Applicant’s).
With respect to claim 7, Zwislocki teaches wherein one of said plurality of resonator cavities (Figure 6, #60) is in direct fluid communication with said medial surface (defined by tip surface of earplug inserted into an ear canal and surrounding opening #28 and facing ear canal, similar to Applicant’s).
Zwislocki fails to explicitly teach wherein at least one other of said plurality of resonator cavities is connected to said one of said plurality of resonator cavities in series.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide wherein at least one other of said plurality of resonator cavities is connected to said one of said plurality of resonator cavities in series, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70. In this case, rearranging the connection of one of the resonators to be connected in series instead of parallel would be an obvious matter of design choice, and well known to one of ordinary skill in the art.
With respect to claim 8, Zwislocki teaches comprising said ear tip (20).
With respect to claim 9, Zwislocki teaches wherein said device (10) is configured to be supported by said ear tip (20) inserted in said ear canal (see Figure 2).
With respect to claim 10, Zwislocki teaches wherein said device (10) is configured to be supported by a headband (24) connected to said plurality of resonators (12/60).
With respect to claim 14, Zwislocki teaches wherein said plurality of resonator cavities (60) are partially filled with a sound absorbing material (22 – Col. 3, Lines 6-8), obviously leaving an air gap in each one of said plurality of resonator cavities (60 – considered obvious due to partial filling described in Col. 3, Lines 6-8), each one of said plurality of resonator cavities (60) being obviously configured to provide an effective balance between an energy leakage from each said one of said plurality of resonator cavities (60) to the environment and an energy dissipation within each said one of said plurality of resonator cavities (60) and together produce an acoustic absorption level that is similar to an acoustic absorption level that is provided by air at the medial surface. This functional language is considered to be obvious in the same way as Applicant’s.
Further, it has been held that the recitation than an element is “configured to” perform a function is not a positive limitation but only requires the ability to so perform. It does not constitute a limitation in any patentable sense. In re Hutchison, 69 USPQ 138. In this case, Zwislocki is capable of functioning as claimed.
With respect to claim 15, Zwislocki teaches wherein said plurality of resonator cavities (60) comprise a neck portion (defined by entrance into cavity portion #60 from unlabeled tube connected between cavities #6o and tip/cuff #20 in Figure 6) and a cavity portion (60), with the cavity portion preferably being partially or fully filled with sound absorbing material (22 - Col. 3, Lines 6-8).
Claims 1-3, 6-7 and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Tikander (5,824,967).
With respect to claim 1, Tikander teaches a hearing protection device (Figures 1 and 3-10A and 6, #10) providing mitigation of an occlusion effect (OE) (this is considered to be obvious, see note below), the device comprising: for sound reduction (Col. 1, Line 66-Col. 2, Lines 16), one of: (i) an ear tip for insertion into an ear canal, the ear tip providing a medial surface having a side facing an ear canal; and (ii) an over-the-ear cup (301/701) having an internal member for covering an ear, the internal member (could be 412/512/612, or 407/412 or 507/512 or 607/612) providing a medial surface (defined by outer facing surfaces of film #412/512/612) having a side facing an ear canal; and a plurality of resonator cavities (418/518/618 – Col. 7, Lines 12-59) in fluid communication with said side facing an ear canal of said medial surface, said resonator cavities (418/518/618) each arranged to absorb from said ear canal an acoustic frequency below 1000 Hz and obviously combine to reduce said OE at frequencies below 1000 Hz (Col. 1, Line 66-Col. 2, Lines 16; Col. 3, Lines 1-2; Col. 5, Line 56-Col. 6, Line 9).
Regarding the mitigation of an occlusion effect, it is noted that the Tikander device completely covers and seals the ear canal (i.e. it is not open to the ambient environment), and can attenuate at least some level of sound in frequencies below 1000 Hz (Col. 1, Line 66-Col. 2, Lines 16; Col. 3, Lines 1-2; Col. 5, Line 56-Col. 6, Line 9. Note that Applicant’s Specification, [0011] states that “The occlusion effect occurs when an object covers or fills the outer portion of the ear canal and is most significant at low frequencies (below 1 kHz).” In its broadest reasonable interpretation, Tikander is considered to “mitigate” an occlusion effect because it both covers the ear canal and provides noise reduction to the ear canal in frequencies below 1000 Hz in a similar manner to Applicant’s device. The term “mitigates” is also vague and open to interpretation, Applicant’s device appears to reduce an occlusion effect compared to a prior art device, but does not necessarily completely eliminate an occlusion effect. Because the device of Tikander is structurally identical to Applicant’s claim 1, and attenuates noise in a frequency range below 1000 Hz, it will function in a similar manner to Applicant’s, and will certainly “mitigate” an occlusion effect relative to a prior art ear plug device such as shown in Applicant’s 1B, which does not include any OC mitigation.
With respect to claim 2, Tikander teaches wherein said plurality of resonator (418/518/618) cavities are four in number.
With respect to claim 3, Tikander teaches wherein said plurality of resonator cavities (418/518/618) are arranged as adjacent parallelepiped chambers.
With respect to claim 6, Tikander teaches said plurality of resonator cavities (418/518/618) are each in direct fluid communication with said medial surface (defined by outer facing surfaces of film #412/512/612).
With respect to claim 7, Tikander teaches wherein one of said plurality of resonator cavities (defined by one of the cavities of cavities #418/518/618) is in direct fluid communication with said medial surface (defined by outer facing surfaces of film #412/512/612), and at least one other of said plurality of resonator cavities defined by (another of the cavities of cavities #418/518/618 adjacent to the one cavity) is connected to said one of said plurality of resonator cavities in series (when walls S1/S2/S3 are “virtual” as depicted in Figure 4B – Col. 6, Line 66-Col. 7, Lines 44-46).
With respect to claim 11, Tikander teaches comprising said over-the-ear cup (301/701).
With respect to claim 12, Tikander teaches wherein said internal member (407/412 or 507/512 or 607/612) is made a film of an obvious, but unspecified material.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide wherein said internal member is made of foam, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. In this case, selecting a film made from foam, or any other material would have been obvious to one of ordinary skill.
With respect to claim 13, Tikander teaches wherein said internal member (could be 412/512/612, or 407/412 or 507/512 or 607/612) supports an array of said resonator cavities (418/518/618).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Pertinent arts of record relating to Applicant’s disclosure are disclosed in the PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEREMY AUSTIN LUKS whose telephone number is (571)272-2707. The examiner can normally be reached Monday-Friday (9:00-5:00).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dedei Hammond can be reached at (571) 270-7938. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JEREMY A LUKS/Primary Examiner, Art Unit 2837
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