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 .
DETAILED ACTION
Claims 1-6 are presented for examination.
Specification
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
The following title is suggested: Hearing Instrument with Capacitive Sensor.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “a fit monitoring unit configured to perform at least one of the following” in claim 5.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. Para 0024 states that the unit is an “electronic circuit”.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 5-6 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.
Referring to claim 5, claim 5 recites the limitation “the deviating fit” in line 7 and “the fit so determined” in the last line. There is insufficient antecedent basis for these limitations in the claim. Examiner interprets as a deviating fit and the fit.
Referring to claim 6, claim 6 recites the limitations "the designated wearing position” in multiple places and “the determined fit” in the last lines. There is insufficient antecedent basis for these limitations in the claim. Examiner interprets as a designated wearing position in the first instance and the fit.
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.
Claim(s) 1, 3, and 5-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Silberzahn et al. US Publication No. 20210099815 (from IDS) in view of Stankovic US Publication No. 20240187772.
Referring to claim 1, Silberzahn et al. teaches a hearing instrument (Fig. 8: BTE hearing aid), comprising:
a housing to be worn in a designated wearing position behind an ear of a user (Fig. 8: BTE component 402);
an earpiece to be inserted into an auditory canal of the ear (Fig. 8: ITE component 106);
a flexible connector that connects said housing to said earpiece (Fig. 8: connector portion 404 connects BTE component 402 to ITE component 106);
an output transducer for converting an output audio signal into a sound signal to be output to the user (para 0037: “ITE component 106 may include a receiver (e.g., a speaker) configured to deliver an audio signal to the user”; para 0045: “BTE component…may include circuitry (e.g., a processor similar to processor 104) configured to control operation of sensor electrodes 110”); and
a capacitive sensor having a control and evaluation circuit and two sensor electrodes electrically connected to said control and evaluation circuit (para 0024: “sensor electrode 110-1 may include a plurality of parallel electrode strips configured to create an electromagnetic field that may be used to determine skin capacitance of the user”);
wherein one of said two sensor electrodes is arranged in said housing (Fig. 8: electrode 110-3 in BTE component 402) and another of said two sensor electrodes is arranged in at least one of said connector or said earpiece (Fig. 8: electrode 110-1 in ITE component 106; para 0060: “sensor electrode 110-2 may be provided as part of a cable that connects a BTE component to an ITE component”).
However, Silberzahn et al. does not teach the two sensor electrodes of the same capacitive sensor in different locations, but Stankovic teaches a capacitive sensor having two sensor electrodes electrically; wherein said two sensor electrodes are arranged in two different locations (Fig. 1: sensor 18 on earcup and sensor 20 on headband; para 0092: “The first capacitive sensor 18 may be configured to form a first mutual capacitive sensor together with the third capacitive sensor 20, e.g., by having either of the first capacitive sensor 18 and the third capacitive sensor acting as a receiver electrode and having the other capacitive sensor acting as a transmitter electrode.”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use two electrodes to in different places, as taught in Stankovic, in the instrument of Siberzahn et al. because it helps to determine if the instrument is “coupled to the user.”
Referring to claim 3, Silberzahn et al. teaches said output transducer is arranged in said earpiece (para 0037) and said connector includes an electrical connecting cable for supplying the output audio signal to said output transducer (para 0058), and wherein at least one of said connecting cable or said output transducer forms one of said sensor electrodes of said capacitive sensor (para 0060).
Referring to claim 5, Silberzahn et al. teaches a hearing system (Fig. 8), comprising: a hearing instrument according to claim 1 (see rejection above for how Silberzahn et al. and Stankovic apply) and Stankovic teaches a fit-monitoring unit configured to perform at least one of the following: check how the housing and the connector fit to the ear of the user on a basis of a sensor signal output by the capacitive sensor and, when the fit is determined as deviating from a designated wearing position, to output a message indicating the deviating fit; and/or adjust at least one signal processing parameter of the hearing instrument on a basis of the capacitive sensor signal output by the capacitive sensor, in order to adapt a signal processing of the hearing instrument to the fit so determined (abstract: “A processor of the headset being configured to receive capacitive information from the first capacitive sensor, the second capacitive sensor, and the third capacitive sensor, to determine whether the first capacitive sensor, the second capacitive sensor, and the third capacitive sensor are capacitively coupled to a user wearing the headset based on the received capacitive information, and to set the headset to a first active mode, if the first capacitive sensor, the second capacitive sensor, and the third capacitive sensor are determined to be capacitively coupled to the user wearing the headset.”). Motivation to combine is the same as in claim 1.
Referring to claim 6, Silberzahn et al. teaches a method of operating a hearing instrument (Fig. 8), the method comprising: providing a hearing instrument according to claim 1 (see rejection above for how Silberzahn et al. and Stankovic apply); acquiring, by the capacitive sensor, a capacitive sensor signal as a measure of a fit of the housing and the connector on the ear of the user; and when the fit is determined to deviate from the designated wearing position, outputting a message indicating that the fit deviates from the designated wearing position; and/or adjusting at least one signal processing parameter of the hearing instrument on a basis of the capacitive sensor signal output by the capacitive sensor, in order to adapt the signal processing of the hearing instrument to the determined fit (abstract: “A processor of the headset being configured to receive capacitive information from the first capacitive sensor, the second capacitive sensor, and the third capacitive sensor, to determine whether the first capacitive sensor, the second capacitive sensor, and the third capacitive sensor are capacitively coupled to a user wearing the headset based on the received capacitive information, and to set the headset to a first active mode, if the first capacitive sensor, the second capacitive sensor, and the third capacitive sensor are determined to be capacitively coupled to the user wearing the headset.” – Examiner notes that when the capacitive sensors of Silberzahn et al. are used to detect wearing status as in Stankovic, the capacitive sensor signals will be a measure of a fit of the BTE component and the connector on the ear). Motivation to combine is the same as in claim 1.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Silberzahn et al. and Stankovic, as shown in claim 1 above, and further in view of Seeger US Publication No. 20230192479.
Referring to claim 2, Silberzahn et al. teaches said control and evaluation circuit of said capacitive sensor is configured to apply a voltage to one of said sensor electrodes and to measure a response signal responsive to the alternating voltage at the respectively other sensor electrode, the response signal being characteristic of an electrical capacitance of a capacitor formed by said sensor electrodes (para 0092). Motivation to combine is the same as in claim 1. However, Silberzahn et al. and Stankovic do not teach an alternating voltage per se, but Seeger teaches apply an alternating voltage (abstract). A person having ordinary skill in the art at the time the invention was made would have had good reason to pursue the known finite options of types of power, therefore it would have been obvious to try applying an alternating voltage, as taught in Seeger, as opposed to a direct current voltage in the instrument of Silberzahn et al. and Stankovic because both types of power can drive a capacitive sensor.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Silberzahn et al. and Stankovic, as shown in claim 1 above, and further in view of Kuipers US Publication No. 20210044910.
Referring to claim 4, Silberzahn et al. teaches at least one of said sensor electrodes of said capacitive sensor is arranged in said sound tube (para 0060). However, Silberzahn et al. and Stankovic do not teach the transducer in the BTE housing, but Kuipers teaches said output transducer is arranged in said housing and said connector is a hollow sound tube for supplying the sound signal created by said output transducer to said earpiece (Fig. 1: speaker 6 in BTE component and sound tube is hollow for supplying sound from speaker 6 to earpiece 2). Both Silberzahn et al. and Kuipers teach behind the ear hearing aids, therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to substitute in a hollow sound tube connector, as taught in Kuipers, for the cable connector, as taught by Silberzahn et al., in the instrument of Siolberzahn et al. and Stankovic because both types of BTE hearing aids provide sound to a user’s ear.
Conclusion
Examiner respectfully requests, in response to this Office Action, support be shown for language added to any original claims on amendment and any new claims. That is, indicate support for newly added claim language by specifically pointing to page(s) and line number(s) in the specification and/or drawing figure(s). This will assist Examiner in prosecuting the application.
When responding to this Office Action, Applicant is advised to clearly point out the patentable novelty which he or she thinks the claims present, in view of the state of the art disclosed by the references cited or the objections made. He or she must also show how the amendments avoid such references or objections. See 37 CFR 1.111(c).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE A FALEY whose telephone number is (571)272-3453. The examiner can normally be reached on Monday to Wednesday, 9am-5pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ahmad Matar can be reached on (571)272-7488. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Any response to this action should be mailed to:
Commissioner of Patents and Trademarks
P.O. Box 1450
Alexandria, Va. 22313-1450
Or faxed to:
(571) 273-8300, for formal communications intended for entry and for
informal or draft communications, please label “PROPOSED” or “DRAFT”.
Hand-delivered responses should be brought to:
Customer Service Window
Randolph Building
401 Dulany Street
Arlington, VA 22314
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KATHERINE A FALEY/Primary Examiner, Art Unit 2693
Prosecution Insights