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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 11,678,104 (the ‘104 Patent). Although the claims at issue are not identical, they are not patentably distinct from each other.
Claims 1-15 of the ‘104 Patent recites all of the elements of Claim 1-12 with the exception of the “intermediary cup”. However, Claim 1 of the ‘104 Patent recites a “second inner cup”, which is structurally equivalent to the claimed “intermediary cup”, which is arranged between the outer cup and the first inner cup, and is configured as an acoustic barrier.
Claims 1-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 12,133,044 (the ‘044 Patent) in view of Lin, U.S. Patent No. 11,451,894, filed on January 14, 2020 (Lin).
As to Claims 1-12, claims 1-12 of the ‘044 Patent recites all the claimed features except for the intermediary cup being configured as an acoustic barrier between outside noise and the inner cavity. However, configuring such an element in a headset earcup was well known. Lin teaches an earcup [100] for a headset, similar to Claim 1, comprising an intermediary cup [112] arranged between the outer cup [111] and the first inner cup [141]; wherein the intermediary cup [112] is configured as an acoustic barrier between outside noise and the inner cavity (the structure provides acoustic resistance; col. 5, lines 16-20). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of Applicant’s invention, to configure the intermediate cup as an acoustic barrier by providing acoustic resistance.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-8, 10-11, and 13-15 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Lin, U.S. Patent No. 11,451,894, filed on January 14, 2020 (Lin).
As to Claim 1, Lin discloses an earcup [100] for a headset, the earcup comprising: a front opening [121] adapted to be adjacent to the ear of a user of the headset (col. 3, lines 10-14); a baffle [120] disposed within the earcup [100] to define a front cavity [SR] and a rear cavity [AS1, AS2]; an outer cup [111] arranged to accommodate the rear cavity [AS1, AS2]; an inner cup [141] arranged within the rear cavity [AS1, AS2] surrounding the front opening [121] and defining an inner cavity within the rear cavity [AS1, AS2]; an intermediary cup [112] arranged between the outer cup [111] and the first inner cup [141]; wherein the intermediary cup [112] is configured as an acoustic barrier between outside noise and the inner cavity (the structure provides acoustic resistance; col. 5, lines 16-20; furthermore, a cup structure covering a transducer would inherently block noise, as opposed to an earcup without such a structure).
As to Claim 2, Lin remains as applied above to Claim 1. Lin further discloses that the intermediary cup [112] is adapted to acoustically sealing off outside noise and to increase the transmission loss of the earcup [100] (the structure provides acoustic resistance; col. 5, lines 16-20; furthermore, a cup structure covering a transducer would inherently block noise and increase transmission loss, as opposed to an earcup without such a structure).
As to Claim 3, Lin remains as applied above to Claim 1. Lin further discloses that the front cavity [SR] is defined by the baffle [120], earpad [150] and the anatomy of the ear of the user (the earpad [150] forms a seal with the user’s ear to form cavity [SR]; col. 4, lines 34-37).
As to Claim 4, Lin remains as applied above to Claim 1. Lin further discloses that the intermediary cup [112] is adapted to increase the transmission loss of the earcup [100] (the structure provides acoustic resistance; col. 5, lines 16-20; furthermore, a cup structure covering a transducer would inherently block noise and increase transmission loss, as opposed to an earcup without such a structure).
As to Claim 5, Lin remains as applied above to Claim 1. Lin further discloses a transducer [130] (the transducer [130] is a speaker; col. 3, line 17) fixated to the baffle [120] (see Fig. 2).
As to Claim 6, Lin remains as applied above to Claim 1. Lin further discloses that an earpad [150] fixated to the baffle [120] (see Fig. 2).
As to Claim 7, Lin remains as applied above to Claim 1. Lin further discloses that the intermediary cup [112] is provided with at least one opening [DH] for tuning the sound (air produced by the transducer [130] is discharged from opening [DH] to meet tuning needs; col. 4, lines 4-9; see Fig. 2).
As to Claim 8, Lin remains as applied above to Claim 1. Lin further discloses that the inner cup [141] is provided with at least one opening [142] (see Fig. 2) for tuning the sound (the openings [142] comprise a tuning portion [140]; col 3, lines 57-61; the tuning portion [140] is for adjusting acoustic resistance, so that characteristics of the sound curve, audio frequency, and sound quality can meet design requirements; col. 3, lines 49-53).
As to Claim 10, Lin remains as applied above to Claim 1. Lin further discloses a headset comprising the earcup [100] (two earcups connected by a headband are provided; col. 3, lines 9-14).
As to Claim 11, Lin remains as applied above to Claim 10. Lin further discloses a second earcup (two earcups connected by a headband are provided; col. 3, lines 9-14).
As to Claim 13, Lin discloses an earcup [100] for a headset, the earcup comprising: a front opening [121] adapted to be adjacent to the ear of a user of the headset (col. 3, lines 10-14); a baffle [120] disposed within the earcup [100] to define a front cavity [SR] and a rear cavity [AS1, AS2]; at least three cups [111, 112, 141], the at least three cups [111, 112, 141] separating the rear cavity [AS1, AS2] into three intermediary cavities (see Fig. 2).
As to Claim 14, Lin remains as applied above to Claim 13. Lin further discloses a headset comprising the earcup [100] (two earcups connected by a headband are provided; col. 3, lines 9-14).
As to Claim 15, Lin remains as applied above to Claim 14. Lin further discloses a second earcup (two earcups connected by a headband are provided; col. 3, lines 9-14).
Claim Rejections - 35 USC § 103
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Lin, U.S. Patent No. 11,451,894, filed on January 14, 2020 (Lin), in view of Sung et al., U.S. Patent No. 8,447,058, patented on May 21, 2013 (Sung).
As to Claim 9, Lin remains as applied above to Claim 1. Lin further discloses that the baffle [120] is provided with at least one opening [122] (see Fig. 1A). Lin does not explicitly disclose that the opening is for tuning the sound. The opening [122] in the earcup of Lin is a pressure relief hole for balancing the internal pressure of front cavity [S1] (Lin: col. 4, lines 29-37). However, the incorporation of a tuning capability into a pressure relief hole was well known in the design of earcups. Sung teaches an earcup (Fig. 3) comprising a baffle [21] disposed within the earcup to define a front cavity [40] and a rear cavity [50], wherein the baffle is provided with at least one opening [60] for tuning the sound (the opening [60] serves the dual purpose of adjusting the resonance frequency and providing pressure relief; Sung: col. 3, lines 25-54). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of Applicant’s invention, to incorporate the functionality of tuning the sound, into the baffle of Lin, for the added benefit of further acoustic customization.
Claims 12 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Lin, U.S. Patent No. 11,451,894, filed on January 14, 2020 (Lin), in view of Fletcher et al., U.S. Patent No. 11,064,283 patented on July 13, 2021 (Fletcher).
As to Claim 12, Lin remains as applied above to Claim 16. Lin does not explicitly disclose that the second earcup comprises a boom arm comprising an input transducer, wherein the boom arm is configured to translate between a first position and a second position, wherein the first position is nearer to the user's mouth than the second position. However, incorporating a boom arm into a headset was well known. Fletcher teaches a headset comprising first [140a] and second earcups [120a], the second earcup [120a] comprising a boom arm [135a] (see Fig. 1A) comprising an input transducer [137a], wherein the boom arm [135a] is configured to translate between a first position (Fig. 2B) and a second position (Fig 2A), wherein the first position (Fig. 2B) is nearer to the user's mouth than the second position (Fig. 2A) (col. 4, lines 3-9). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of Applicant’s invention to incorporate a boom arm into the headset of Lin, for the benefit and additional feature of a microphone with communication capabilities (Fletcher: col. 1, lines 24-27).
As to Claim 16, Lin remains as applied above to Claim 14. Lin does not explicitly disclose that the second earcup comprises a boom arm comprising an input transducer, wherein the boom arm is configured to translate between a first position and a second position, wherein the first position is nearer to the user's mouth than the second position. However, incorporating a boom arm into a headset was well known. Fletcher teaches a headset comprising first [140a] and second earcups [120a], the second earcup [120a] comprising a boom arm [135a] (see Fig. 1A) comprising an input transducer [137a], wherein the boom arm [135a] is configured to translate between a first position (Fig. 2B) and a second position (Fig 2A), wherein the first position (Fig. 2B) is nearer to the user's mouth than the second position (Fig. 2A) (col. 4, lines 3-9). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of Applicant’s invention to incorporate a boom arm into the headset of Lin, for the benefit and additional feature of a microphone with communication capabilities (Fletcher: col. 1, lines 24-27).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ryan Robinson whose telephone number is (571) 270-3956. The examiner can normally be reached on Monday through Friday from 9 am to 5 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Fan Tsang, can be reached on (571) 272-7547. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
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/RYAN ROBINSON/Primary Examiner, Art Unit 2694
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