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 .
Status of Claims
Claims 1, 3, 5-6, 8-11, 15-18 and 20 are rejected
Claims 2, 4, 7, 12-14 and 19 are objected to
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.
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Claims 1-7, 11-12, 15-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7-8, 10-12, 14-17 and 19-20 of U.S. Patent No. 12167193. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant application are similar in scope and are directed to the same subject matter as the claims of US Patent No. 12167193 with obvious wording variations. For instance, claim 1 of the said US Patent anticipates all the limitations of claim 1 of the instant application.
The chart below illustrates how the claim(s) of the instant application are obvious over the claim(s) of the US Patent No. 12167193
Instant Appln: 18968914
U.S. Patent No. 12167193
1. An earbud, comprising: a housing; a speaker housed by the housing; a first wireless interface, housed by the housing, that communicates using a short-range device-to-device communication protocol using a first frequency band; a second frequency-shifted wireless interface, housed by the housing, that communicates using the short-range device-to-device communication protocol on a frequency-shifted communication band outside of the first frequency band; and a processing system, comprising one or more processors, housed by the housing, configured to: receive a first audio stream from a first audio source via the second frequency-shifted wireless interface using the short-range device-to-device communication protocol; receive a second audio stream from a second audio source via the first wireless interface using the short-range device-to-device communication protocol; and output the first audio stream and the second audio stream to the speaker.
2. The earbud of claim 1, wherein the processing system is further configured to: determine that the frequency-shifted communication band is available for use between the first audio source and the earbud, wherein the first audio stream from the first audio source is received via the second frequency-shifted wireless interface based on the determination.
3. The earbud of claim 1, wherein the first audio stream and the second audio stream are output by the speaker simultaneously.
4. The earbud of claim 1, wherein, based on a first priority of the first audio stream and a second priority of the second audio stream, output of the first audio stream and the second audio stream comprises the processing system being configured to: output the second audio stream instead of the first audio stream.
5. The earbud of claim 1, wherein the second frequency-shifted wireless interface comprises a separate local oscillator and separate antenna from the first wireless interface.
6. The earbud of claim 1, wherein the frequency-shifted communication band is a 5 GHz band or 6 GHz band.
7. The earbud of claim 1, wherein the processing system is further configured to: reassign the first audio source from the first wireless interface to the second frequency-shifted wireless interface based on the earbud connecting with the second audio source.
10. The earbud of claim 9, wherein the first audio stream uses the Bluetooth Low Energy (LE) audio protocol.
11. A system, comprising: a first wireless interface that communicates using a short-range device-to-device communication protocol using a first frequency band; a second frequency-shifted wireless interface that communicates using the short-range device-to-device communication protocol on a frequency-shifted communication band outside of the first frequency band; and a processing system, comprising one or more processors, configured to: receive a first audio stream from a first audio source via the second frequency-shifted wireless interface using the short-range device-to-device communication protocol; receive a second audio stream from a second audio source via the first wireless interface using the short-range device-to-device communication protocol; and output the first audio stream and the second audio stream via one or more speakers.
12. The system of claim 11, wherein the processing system is further configured to: determine that the frequency-shifted communication band is available for use between the first audio source and the system, wherein the first audio stream from the first audio source is received via the second frequency-shifted wireless interface based on the determination.
15. The system of claim 11, wherein the frequency-shifted communication band is a 5 GHz band or a 6 GHz band.
16. A method of performing wireless device-to-device communication, comprising: establishing, by an audio output device, a first connection with a first audio source via a first wireless interface that communicates using a short-range device-to-device communication protocol on a first frequency band; negotiating, by the audio output device, that frequency-shifted communication is available for use with the first audio source; determining, by the audio output device, that the frequency-shifted communication is to be used for communication with the first audio source at least partially based on negotiating that the frequency-shifted communication is available for use with the first audio source; and performing, by the audio output device, frequency-shifted communication with the first audio source such that the audio output device receives a first audio stream from the first audio source using frequency-shifted communications outside of the first frequency band.
17. The method of claim 16, wherein the frequency-shifted communication using the short-range device-to-device communication protocol is performed using a second wireless interface that communicates using the short-range device-to-device communication protocol on a 5 GHz frequency band, a 6 GHz frequency band, or both.
18. The method of claim 16, further comprising: establishing, by the audio output device, a second connection with a second audio source via the first wireless interface that communicates using the short-range device-to-device communication protocol on the first frequency band.
19. The method of claim 18, further comprising: receiving, by the audio output device, a second audio stream from the second audio source using the first wireless interface, wherein the second audio stream is received over a time period during which the first audio stream is being received; and outputting, by the audio output device, the first audio stream and the second audio stream.
20. The method of claim 16, wherein the audio output device is an earbud.
1. An earbud, comprising: a housing; a speaker housed by the housing; a first Bluetooth interface, housed by the housing, that communicates using a Bluetooth communication protocol using a 2.4 GHz Bluetooth frequency band; a second frequency-shifted Bluetooth interface, housed by the housing, that communicates using the Bluetooth communication protocol on a Bluetooth frequency-shifted communication band outside of the 2.4 GHz Bluetooth frequency band; and a processing system, comprising one or more processors, housed by the housing, configured to: receive a first audio stream from a first audio source via the second frequency-shifted Bluetooth interface using the Bluetooth communication protocol; receive a second audio stream from a second audio source via the first Bluetooth interface using the Bluetooth communication protocol, wherein the second audio stream is received while the first audio stream is being received; and output the first audio stream and the second audio stream to the speaker.
2. The earbud of claim 1, wherein the processing system is further configured to: determine that the Bluetooth frequency-shifted communication band is available for use, wherein the first audio stream from the first audio source is received via the second frequency-shifted Bluetooth interface based on the determination.
3. The earbud of claim 1, wherein the first audio stream and the second audio stream are output by the speaker simultaneously.
4. The earbud of claim 1, wherein, based on a first priority of the first audio stream and a second priority of the second audio stream, output of the first audio stream and the second audio stream comprises the processing system being configured to: output the second audio stream instead of the first audio stream when the second audio stream is received.
5. The earbud of claim 1, wherein the second frequency-shifted Bluetooth interface comprises a separate local oscillator and separate antenna from the first Bluetooth interface.
7. The earbud of claim 1, wherein the Bluetooth frequency-shifted communication band is a 6 GHz band.
8. The earbud of claim 1, wherein the processing system is further configured to: connect with the second audio source; and reassign the first audio source from the first Bluetooth interface to the second frequency-shifted Bluetooth interface based on connecting with the second audio source.
10. The earbud of claim 1, wherein the first audio stream uses the Bluetooth Low Energy (LE) audio protocol.
11. A system, comprising: a first Bluetooth interface that communicates using a Bluetooth communication protocol using a 2.4 GHz Bluetooth frequency band; a second frequency-shifted Bluetooth interface that communicates using the Bluetooth communication protocol on a Bluetooth frequency-shifted communication band outside of the 2.4 GHz Bluetooth frequency band; and a processing system, comprising one or more processors, configured to: receive a first audio stream from a first audio source via the second frequency-shifted Bluetooth interface using Bluetooth; receive a second audio stream from a second audio source via the first Bluetooth interface using Bluetooth, wherein the second audio stream is received while the first audio stream is being received; and output the first audio stream and the second audio stream concurrently.
12. The system of claim 11, wherein the processing system is further configured to: determine that the Bluetooth frequency-shifted communication band is available for use, wherein the first audio stream from the first audio source is received via the second frequency-shifted Bluetooth interface based on the determination.
14. The system of claim 11, wherein the Bluetooth frequency-shifted communication band is a 6 GHz band.
15. A method of performing wireless device-to-device communication, comprising: establishing, by an audio output device, a first connection with a first audio source via a first Bluetooth interface that communicates using a Bluetooth communication protocol on a 2.4 GHz Bluetooth frequency band; negotiating, by the audio output device, that Bluetooth frequency-shifted communication is available for use with the first audio source; determining, by the audio output device, that Bluetooth frequency-shifted communication is to be used for communication with the first audio source at least partially based on negotiating that Bluetooth frequency-shifted communication is available for use with the first audio source; and performing, by the audio output device, Bluetooth frequency-shifted communication with the first audio source such that the audio output device receives a first audio stream from the first audio source using Bluetooth frequency-shifted communication and the Bluetooth communication protocol.
16. The method of claim 15, wherein the Bluetooth frequency-shifted communication using the Bluetooth communication protocol is performed using a second Bluetooth interface that communicates using the Bluetooth communication protocol on a 5 GHz frequency band, a 6 GHz frequency band, or both.
17. The method of claim 15, further comprising: establishing, by the audio output device, a second connection with a second audio source via the first Bluetooth interface that communicates using the Bluetooth communication protocol on the 2.4 GHz Bluetooth frequency band.
19. The method of claim 18, further comprising: receiving, by the audio output device, a second audio stream from the second audio source using the first Bluetooth interface, wherein the second audio stream is received while the first audio stream is being received; and outputting, by the audio output device, the first audio stream and the second audio stream.
20. The method of claim 15, wherein the audio output device is an earbud.
Claim Rejections - 35 USC § 102
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 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 3, 5, 9-11, 16, 18 and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Solum (US PUB 20200322739).
Regarding Claim 1, Solum discloses an earbud (e.g. a hearing assistance device 100), (see at least the abstract and figures 1-2), comprising: a housing; a speaker housed by the housing (see figure 1); a first wireless interface (e.g. a first antenna 211) housed by the housing, that communicates using a short-range device-to-device communication protocol using a first frequency band (e.g. a high frequency band), a second frequency-shifted wireless interface (e.g. a second antenna 221) housed by the housing, that communicates using the short-range device-to-device communication protocol on a frequency-shifted communication band (e.g. a lower frequency band) outside of the first frequency band (see figure 2); and a processing system, comprising one or more processors (e.g. processor 130), housed by the housing (see figures 1-2), configured to: receive a first audio stream from a first audio source via the second frequency-shifted wireless interface using the short-range device-to-device communication protocol (e.g. receiving a low frequency audio stream via the low frequency antenna 221 from an externally connected audio device); receive a second audio stream from a second audio source via the first wireless interface using the short-range device-to-device communication protocol (e.g. receiving a high frequency audio stream via the high frequency antenna 211 from an externally connected audio device); and output the first audio stream and the second audio stream to the speaker (e.g. processor 130 processes audio streams received from multiple audio sources at different frequency bands via the corresponding high frequency antenna 211 and the low frequency antenna 221, and sends the output to the speakers of the hearing assistance device 100), (see Solum, [0017]-[0018], [0025]-[0027], [0031]-[0033], and [0038], also figures 1-2).
Regarding Claim 3, Solum discloses the earbud of claim 1, wherein the first audio stream and the second audio stream are output by the speaker simultaneously (e.g. the processor 130 can process the audio streams received by both the low and high antennas and send them for output by the speaker concurrently), (see Solum, [0031 and figure 2).
Regarding Claim 5, Solum discloses the earbud of claim 1, wherein the second frequency-shifted wireless interface comprises a separate local oscillator (e.g. oscillator 322) and separate antenna (e.g. antenna 211) from the first wireless interface (see Solum, [0028], also figures 3 and 4).
Regarding Claim 9, Solum discloses the earbud of claim 1, wherein the short-range device-to-device communication protocol is a Bluetooth family protocol (see Solum, [0039]).
Regarding Claim 10, Solum discloses the earbud of claim 9, but fails to explicitly disclose wherein the first audio stream uses the Bluetooth Low Energy (LE) audio protocol (e.g. Bluetooth IEEE 802.15 protocol), (see Solum, [0039]).
Regarding Claim 11, Solum discloses a system (see at least the abstract and figures 1-2), comprising: a first wireless interface (e.g. a first antenna 211) that communicates using a short-range device-to-device communication protocol using a first frequency band (e.g. a high frequency band); a second frequency-shifted wireless interface (e.g. a second antenna 221) that communicates using the short-range device-to-device communication protocol on a frequency-shifted communication band (e.g. a lower frequency band) outside of the first frequency band (see figure 2); and a processing system, comprising one or more processors (e.g. processor 130), configured to: receive a first audio stream from a first audio source via the second frequency-shifted wireless interface using the short-range device-to-device communication protocol (e.g. receiving a low frequency audio stream via the low frequency antenna 221 from an externally connected audio device); receive a second audio stream from a second audio source via the first wireless interface using the short-range device-to-device communication protocol (e.g. receiving a high frequency audio stream via the high frequency antenna 211 from an externally connected audio device); and output the first audio stream and the second audio stream via one or more speakers (e.g. processor 130 processes audio streams received from multiple audio sources at different frequency bands via the corresponding high frequency antenna 211 and the low frequency antenna 221, and sends the output to the speakers of the hearing assistance device 100), (see Solum, [0017]-[0018], [0025]-[0027], [0031]-[0033], and [0038], also figures 1-2).
Regarding Claim 16, Solum discloses a method of performing wireless device-to-device communication (see at least the abstract and figures 1-2), comprising: establishing, by an audio output device, a first connection with a first audio source via a first wireless interface (e.g. a first antenna 211) that communicates using a short-range device-to-device communication protocol on a first frequency band (e.g. a high frequency band); negotiating, by the audio output device, that frequency-shifted communication is available for use with the first audio source; determining, by the audio output device, that the frequency-shifted communication is to be used for communication with the first audio source at least partially based on negotiating that the frequency-shifted communication is available for use with the first audio source; and performing, by the audio output device, frequency-shifted communication with the first audio source such that the audio output device receives a first audio stream from the first audio source using frequency-shifted communications outside of the first frequency band (e.g. receiving a low frequency audio stream via the low frequency antenna 221 from externally connected audio device); (e.g. a processor 130 of the audio device processes audio streams received from multiple audio sources based on available frequency bands via the corresponding high frequency antenna 211 and low frequency antenna 221, and sends the output to the speakers of the hearing assistance device 100), (see Solum, [0017]-[0018], [0025]-[0027], [0031]-[0033], and [0038], also figures 1-2).
Regarding Claim 18, Solum discloses the method of claim 16, further comprising: establishing, by the audio output device, a second connection with a second audio source via the first wireless interface (e.g. a first antenna 211) that communicates using the short-range device-to-device communication protocol on the first frequency band (e.g. high frequency band), (see Solum, [0031]-[0032], also figures 1-2).
Regarding Claim 20, Solum discloses the method of claim 16, wherein the audio output device is an earbud (e.g. hearing assistance 100), (see Solum, [0027] and [0048]).
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(s) 6, 8, 15 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Solum as applied to claims 1 and 11 above, and further in view of Goh et al (US PAT 11985458, hereinafter Goh).
Regarding Claim 6, Solum discloses earbud of claim 1, but fails to explicitly disclose wherein the frequency-shifted communication band is a 5 GHz band or 6 GHz band.
However, Goh in the same field of endeavor teaches that it is well known in the art to apply frequency-shifted communication band of a 5 GHz band or 6 GHz band in audio communication interface as set forth in column 8 lines 23-59, and figure 1. Therefore, it would have been obvious to any person having an ordinary skill in the art before the effective filing date of the present invention to incorporate means of frequency-shifted communication band in the 5 GHz band or 6 GHz band as taught by Goh in the teachings of Solum in order to adapt the audio device for expanded wireless audio connection.
Regarding Claim 8, Solum as modified by Goh discloses earbud of claim 1, but fails to explicitly disclose wherein the earbud and the first audio source are from a same manufacturer. However, it would have been obvious matter of choice to any person having an ordinary skill in the art to incorporate an earbud and audio source from the same manufacturer in order to achieve better audio transmission compatibility.
Regarding Claim 15, Solum discloses the system of claim 11, but fails to explicitly disclose wherein the frequency-shifted communication band is a 5 GHz band or a 6 GHz band.
However, Goh in the same field of endeavor teaches that it is well known in the art to apply frequency-shifted communication band of a 5 GHz band or 6 GHz band in audio communication interface as set forth in column 8 lines 23-59, and figure 1. Therefore, it would have been obvious to any person having an ordinary skill in the art before the effective filing date of the present invention to incorporate means of frequency-shifted communication band in the 5 GHz band or 6 GHz band as taught by Goh in the teachings of Solum in order to adapt the audio device for expanded wireless audio connection.
Regarding Claim 17, Solum as modified by Goh discloses the method of claim 16, wherein the frequency-shifted communication using the short-range device-to-device communication protocol is performed using a second wireless interface that communicates using the short-range device-to-device communication protocol on a 5 GHz frequency band, a 6 GHz frequency band, or both (see Goh, column 8 lines 23-59, and figure 1).
Allowable Subject Matter
Claims 2, 4, 7, 12-14 and 19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record provided on PTO 892 and not relied upon is considered pertinent to applicant's disclosure.
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/OYESOLA C OJO/Primary Examiner, Art Unit 2695
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