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 .
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.
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, 7-11, 14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 14, 18-20 of U.S. Patent No. 12,198,068 (hereinafter referred to as Patent ‘068). Although the claims at issue are not identical, they are not patentably distinct from each other because claims in the continuation are broader than the ones in patent. In re Van Ornum and Stang, 214 USPQ T61, broad claims in continuation application are rejected as obvious double patenting over previously patented narrow claims. For example, claim 1 of the present invention is functionally similar to claim 1 of Patent ‘068 except that claim 1 of the present invention does not recite “at least one speaker” as recited claim 1 of Patent ‘068;. Further, claim 1 of the present invention recites ‘A system comprising:” instead of “An earpiece comprising:” as recited in claim 1 of Patent ‘068; claim 1 of the present invention recites “an earpiece housing; a plurality of sensors disposed within the earpiece housing” same as “an earpiece housing; a plurality of sensors disposed within the earpiece housing” as recited in claim 1 of Patent ‘068; claim 1 of the present invention recites “a processor disposed within the earpiece housing and operatively connected to the plurality of sensors” functionally similar but broader than “a processor disposed within the earpiece housing and operatively connected to the plurality of sensors and the at least one speaker” as recited in claim 1 of Patent ‘068; claim 1 of the present invention recites “receive sensor data from the plurality of sensors; determine a contextual state of a user based on processing the sensor data using an artificial intelligence framework” functionally similar but broader than “wherein the processor is configured to use an artificial intelligence framework to evaluate sensor input from the plurality of sensors to generate advice to a user based at least in part on context of location of the user and activity of the user; wherein the processor is configured to use the artificial intelligence framework to determine the activity of the user using sensor input from the plurality of sensors” as recited in claim 1 of Patent ‘068; claim 1 of the present invention recites “determine a contextually relevant time to provide advice to the user based at least in part on the contextual state” functionally similar but broader than “wherein the processor is configured to use the artificial intelligence framework to determine a contextually relevant time to deliver the advice to the user based at least in part on the location of the user and the activity of the user” as recited in claim 1 of Patent ‘068; and claim 1 of the present invention recites “delay delivery of the advice until the contextually relevant time” functionally similar to “wherein the processor is configured to delay the delivery of the advice to the user until the contextually relevant time” as recited in claim 1 of Patent ‘068. Additionally, claim 1 of present invention recites “a memory storing instructions that, when executed by the processor, cause the processor to:;” However, this was not only well known to a person of ordinary skill in the art but was well known to any general user of modern electronic device operating with software i.e. desktop computer, laptop computer, smart phone, smart watch etc.
Claim 7, rejected against claim 2 of Patent ‘068.
Claim 7, rejected against claim 3 of Patent ‘068.
Claim 7, rejected against claim 4 of Patent ‘068.
Claim 8, of the present invention is functionally similar to claim 14 of Patent ‘068 except that claim 8 of the present invention recites “device”: as “an earpiece” recited in claim 14 of Patent ‘068. . For example, claim 8 of the present invention recites ‘A method comprising: monitoring a plurality of sensors using a device, wherein the device comprises an earpiece housing containing the plurality of sensors” functionally similar to “A method of providing advice using a device, the method comprising: monitoring a plurality of sensors using the device” as recited in claim 14 of Patent ‘068; claim 8 of the present invention recites “using an artificial intelligence platform of the device to: generate advice to a user based on contextual understanding using data from the plurality of sensors” functionally similar to “using an artificial intelligence platform of the device to generate advice to a user of the device based on contextual understanding at least partially determined using data from the plurality of sensors” as recited in claim 14 of Patent ‘068; and claim 8 of the present invention recites “determine a contextually relevant time to deliver the advice to the user; and deliver the advice to the user at the contextually relevant time” functionally similar but broader than “using the artificial intelligence platform of the device to determine a contextually relevant time to deliver the advice to the user, the contextually relevant time at least partially determined using additional data from the plurality of sensors and wherein the additional data is used by the artificial intelligence platform to determine mood of the user; delivering the advice to the user through the device after a delay and at the contextually relevant time” as recited in claim 14 of Patent ‘068.
Claim 9, rejected against claim 20 of Patent ‘068.
Claim 10, rejected against claim 18 of Patent ‘068.
Claim 11, rejected against claim 19 of Patent ‘068.
Claim 14, of the present invention is functionally similar to claim 5 of Patent ‘068 except that claim 14 of the present invention recites “system” instead of “an earpiece” as recited in claim 5 of Patent ‘068.. Further, claim 14 of the present invention recites “an earpiece housing; at least one speaker disposed within the earpiece housing; a plurality of sensors disposed within the earpiece housing” functionally similar to “an earpiece housing; at least one speaker; a plurality of sensors disposed within the earpiece housing” as recited in claim 5 of Patent ‘068; claim 14 of the present invention recites “a processor operatively connected to the plurality of sensors and the at least one speaker, wherein the processor is configured to: use an artificial intelligence framework to evaluate sensor input from the plurality of sensors to provide advice to a user” functionally similar bur broader than “a processor disposed within the earpiece housing and operatively connected to the plurality of sensors and the at least one speaker; wherein the processor is configured to use an artificial intelligence framework to evaluate sensor input from the plurality of sensors to generate advice to a user based at least in part on context of location of the user and activity of the user; wherein the processor is configured to use the artificial intelligence framework to determine the activity of the user using sensor input from the plurality of sensors” as recited in claim 5 of Patent ‘068; and claim 14 of the present invention recites “determine a mood of the user based at least in part on the sensor input; and determine a contextually relevant time to deliver the advice based at least in part on the determined mood” functionally similar but broader than “wherein the processor is configured to use the artificial intelligence framework to determine a contextually relevant time to deliver the advice to the user based at least in part on the location of the user and the activity of the user; wherein the processor is configured to delay the delivery of the advice to the user until the contextually relevant time” and “wherein the wherein the contextually relevant time to deliver the advice to the user is further based on a determination of a mood of a user” as recited in claim 5 of Patent ‘068.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3-4, 7-11, 13 are rejected under 35 U.S.C. 103 as being unpatentable over Sindia (US Patent Application Publication No. 2017/0188129), and further in view of Ermilov (US Patent Application Publication No. 2016/0124707).
Regarding claim 1, Sindia teaches a system (Fig. 1) comprising:
an earpiece housing (Fig. 1 items 202, 204, Paragraphs 0041-0042);
a plurality of sensors disposed within the earpiece housing (Figs. 1-2 items 106, 108, 110, Paragraphs 0026, 0043);
a processor disposed within the earpiece housing and operatively connected to the plurality of sensors (Paragraphs 0026, 0038-0043, 0075); and
a memory storing instructions that, when executed by the processor, cause the processor (Paragraphs 0059-0067) to:
receive sensor data from the plurality of sensors; determine a contextual state of a user based on processing the sensor data using an artificial intelligence framework (determine proximity state of the user using sensor data); determine a contextually relevant time to provide advice to the user based at least in part on the contextual state; and control delivery of the advice until the contextually relevant time (Figs. 8-9, Paragraphs 0075-0082 determine conditional time when to alert (advice) and then issue alert (Advice)) (Paragraphs 0015-0083 for complete details, 0084-0127 details about information on any object).
Sindia teaches determining distance and velocity and waiting until they are beyond their threshold values and thus delaying the delivery until the contextually relevant time, but Sindia does not specifically teach it as to delay the delivery of the advice to the user until the contextually relevant time.
However, in the similar field, Ermilov teaches to delay the delivery of the advice to the user until the contextually relevant time (Paragraphs 0126, 0146-0148) (Paragraph 0077-0137 for details).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify Sindia to delay the delivery of the advice to the user until the contextually relevant time as taught by Ermilov in order to “delay the delivery of information, e.g., because more critical information is being played back” or “in some cases, a delayed message will no longer be relevant by the time that the system 102 is capable of presenting it (e.g., because the user has moved to a new context in which the information is no longer relevant)” (Ermilov, Paragraph 0126).
Regarding claim 3, Sindia teaches wherein determining the contextual state includes determining at least one of: whether the user is stressed, whether the user needs to focus, or whether the user needs a distraction (Paragraph 0040 determine user state of being in danger and provide distraction alert).
Regarding claim 4, Sindia teaches wherein the contextual state includes at least one of: what the user is doing (Paragraphs 0015-0016 user is moving), who is around the user (Paragraphs 0025, 0047 object including person in proximity), what is the time of day, or what is a location of the user (location of the user in proximity of danger).
Regarding claim 7, Sindia teaches wherein the advice includes at least one of: a product recommendation, a service recommendation, or information (Paragraphs 0017-0022 human-perceptible output about danger, 0027 information about direction).
Regarding claim 8, Sindia teaches a method comprising:
monitoring a plurality of sensors (Figs. 1-2 items 106, 108, 110, Paragraphs 0026, 0029-0038, 0041-0045) using a device (Fig. 1 item 102, Fig. 2 item 200), wherein the device comprises an earpiece housing (Fig. 2 items 202A, 202B, 204, Paragraphs 0041-0045) containing the plurality of sensors;
using an artificial intelligence platform of the device to: generate advice to a user based on contextual understanding using data from the plurality of sensors (determine proximity state of the user using sensor data); determine a contextually relevant condition to provide the advice to the user; and deliver the advice to the user at the contextually relevant condition (Figs. 8-9, Paragraphs 0075-0082 determine conditional time when to alert (advice) and then issue alert (Advice)) (Paragraphs 0015-0083 for complete details, 0084-0127 details about information on any object).
Sindia teaches determining distance and velocity and waiting until they are beyond their threshold values and thus delivering at the contextually relevant time, but Sindia does not specifically teach it as the delivery of the advice to the user at the contextually relevant time.
However, in the similar field, Ermilov teaches the delivery of the advice to the user at the contextually relevant time (Paragraphs 0126, 0146-0148) (Paragraph 0077-0137 for details).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify Sindia to include the delivery of the advice to the user at the contextually relevant time as taught by Ermilov in order to “delay the delivery of information, e.g., because more critical information is being played back” or “in some cases, a delayed message will no longer be relevant by the time that the system 102 is capable of presenting it (e.g., because the user has moved to a new context in which the information is no longer relevant)” (Ermilov, Paragraph 0126).
Regarding claim 9, Ermilov teaches wherein determining the contextually relevant time includes determining whether the user has made any requests (Paragraphs 0091, 0094, 0096, 0102, 0161, 0200-0201).
Regarding claim 10, Ermilov teaches wherein determining the contextually relevant time includes determining a location of the user (Paragraphs 0083, 0087, 0096, 0099, 0105, 0146).
Regarding claim 11, Ermilov teaches wherein determining the contextually relevant time includes determining an activity of the user (Paragraphs 0092-0099, 0103-0105 based on user movement activity).
Regarding claim 13, Ermilov teaches wherein using the artificial intelligence platform includes determining whether the user is at a particular location (Paragraphs 0083, 0087, 0096, 0099, 0105, 0146), with particular people, experiencing a particular emotional state, or engaging in a particular activity (Paragraphs 0092-0099, 0103-0105 user movement activity).
Claims 2, 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Sindia and Ermilov as applied to claim 1 above, and further in view of Mei (US Patent Application Publication No. 2017/0195795).
Regarding claim 2, Sindia and Ermilov do not teach the plurality of sensors includes at least one of: an inertial sensor, a bone microphone, a physiological sensor, or a temperature sensor.
However, in the similar field, Mei teaches the plurality of sensors includes at least one of: an inertial sensor, a bone microphone, a physiological sensor (heart rate sensor, blood pressure sensor, brain sensor, visual sensor), or a temperature sensor (Paragraphs 0006, 0082-0083, 0099, 0214, 0248-0249, 0268).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify Sindia and Ermilov to include the plurality of sensors as at least one of: an inertial sensor, a bone microphone, a physiological sensor (heart rate sensor, blood pressure sensor, brain sensor, visual sensor), or a temperature sensor as taught by Mei in order to provide “an earphone or a headset with intelligent units, multiple sensor units” …”reflecting a user's movements, environments, and needs, automatically, intelligently, at the same time and same pace and same vision and sound space” (Mei, Paragraph 0012).
Regarding claim 5, Mei teaches the plurality of sensors includes a physiological sensor configured to measure at least one of: heart rate, steps, pace (walking or running), acceleration, respiration (chest movement), G-force, direction, or body vitals (heart sensor, blood pressure) (Paragraphs 0006, 0082-0083, 0099, 0174, 0214, 0224, 0248-0249, 0268).
Regarding claim 6, Mei teaches wherein the instructions further cause the processor to: receive data from at least one sensor not disposed within the earpiece housing (Paragraph 0076 externally plugged sensors); and modify the contextual state based on the received data (Paragraphs 0079, 0081-0086 new state with different movements).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Sindia and Ermilov as applied to claim 8 above, and further in view of Usher (US Patent Application Publication No. 2009/0238386).
Regarding claim 12, Sindia and Ermilov do not teach determining whether the user is engaged in a phone conversation; and delaying delivery of the advice until after the phone conversation if the user is engaged in the phone conversation.
However, in the similar field, Usher teaches determining whether the user is engaged in a phone conversation; and delaying delivery of the advice until after the phone conversation if the user is engaged in the phone conversation (Paragraph 0066).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify Sindia and Ermilov to include determining whether the user is engaged in a phone conversation; and delaying delivery of the advice until after the phone conversation if the user is engaged in the phone conversation as taught by Usher in order to enable “preventing notification while the user of the earpiece 100 is talking” (Usher, Paragraph 0066).
Claims 14, 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Flickinger (US Patent Application Publication No. 2017/0143246), and further in view of Mei (US Patent Application Publication No. 2017/0195795).
Regarding claim 14, Flickinger teaches a system comprising:
an earpiece housing (Paragraphs 0012, 0034, 0038, 0047-0048 ear bud, headphone);
a plurality of sensors disposed within the earpiece housing (Fig. 2 item 210 sensors in wearables, Paragraphs 0016, 0025); and
a processor operatively connected to the plurality of sensors (Fig. 2 item 220, Paragraphs 0036-0037), wherein the processor is configured to:
use an artificial intelligence framework to evaluate sensor input from the plurality of sensors to provide advice to a user (Fig. 2 items 220, 240); determine a mood of the user based at least in part on the sensor input; and determine a contextually relevant time to deliver the advice based at least in part on the determined mood (Fig. 2 items 230, 260) (Paragraphs 0026-0034 determine mood and deliver advice at the relevant time of change in mood) (Paragraphs 0009-0016, 0022-0067 for complete details).
Flickinger teaches ear buds providing voice notification, audio report or warning (Paragraphs 0023, 0029, 0038) thus obviously including at least one speaker, but Flickinger does not explicitly teach at least one speaker disposed within the earpiece housing.
However, in the similar field, Mei teaches at least one speaker disposed within the earpiece housing (Paragraphs 0012, 0015-0016, 0026, 0066).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify Flickinger to include at least one speaker disposed within the earpiece housing as taught by Mei in order to create “intelligent 3D stereo sound effects and outputs, or smart 3D real stereo sound in 3D stereo sound space or VR/AR/MR/AI vision and sound space” (Mei, Paragraph 0066).
Regarding claim 16, Flickinger teaches to: distinguish between idle, walking, running, cycling, swimming, sleeping, or other activities based on the sensor input (Paragraph 0004). Mei teaches to: distinguish between idle, walking, running, cycling, swimming, sleeping, or other activities based on the sensor input (Paragraphs 0214, 0222). (Note: it would have been obvious to a person of ordinary skill in the art before the effective filing date of the present invention to modify Flickinger and Mei to include any number of other sensors to determine other body characteristics of a user as an implementation choice.).
Regarding claim 17, Flickinger teaches the plurality of sensors includes at least one biometric sensor configured to measure physiological parameters (Paragraphs 0010, 0030, 0047). Mei teaches the plurality of sensors includes at least one biometric sensor configured to measure physiological parameters (Paragraphs 0082, 0099, 0248).
Regarding claim 18, Flickinger the processor is further configured to: track user responses to previously provided advice; and modify future delivery of advice based on the tracked user responses (Paragraphs 0015-0016, 0025, 0050 system trained by user input/feedback).
Regarding claim 19, Flickinger teaches the artificial intelligence framework includes at least one of: a machine learning model, a convolutional neural network, a hidden Markov model, natural language processing, or a deep neural network (Paragraphs 0015-0016, 0037, 0054).
Regarding claim 20, Mei teaches to receive data from at least one external sensor not disposed within the earpiece housing (Paragraph 0076 externally plugged sensors); and modify the contextual state based on the received data (Paragraphs 0079, 0081-0086 new state with different movements).
Claims 14-19 are rejected under 35 U.S.C. 103 as being unpatentable over Flickinger (US Patent Application Publication No. 2017/0143246), and further in view of Boesen (US Patent Application Publication No. 2007/0230736).
Regarding claim 14, Flickinger teaches a system comprising:
an earpiece housing (Paragraphs 0012, 0034, 0038, 0047-0048 ear bud, headphone);
a plurality of sensors disposed within the earpiece housing (Fig. 2 item 210 sensors in wearables, Paragraphs 0016, 0025); and
a processor operatively connected to the plurality of sensors (Fig. 2 item 220, Paragraphs 0036-0037), wherein the processor is configured to:
use an artificial intelligence framework to evaluate sensor input from the plurality of sensors to provide advice to a user (Fig. 2 items 220, 240); determine a mood of the user based at least in part on the sensor input; and determine a contextually relevant time to deliver the advice based at least in part on the determined mood (Fig. 2 items 230, 260) (Paragraphs 0026-0034 determine mood and deliver advice at the relevant time of change in mood) (Paragraphs 0009-0016, 0022-0067 for complete details).
Flickinger teaches ear buds providing voice notification, audio report or warning (Paragraphs 0023, 0029, 0038) thus obviously including at least one speaker, but Flickinger does not explicitly teach at least one speaker disposed within the earpiece housing.
However, in the similar field, Boesen teaches at least one speaker disposed within the earpiece housing (Paragraphs 0037-0038, 0075).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify Flickinger to include at least one speaker disposed within the earpiece housing as taught by Boesen so that “Audio may be transmitted to one or more of the earpieces 102, 104 or to headset 103 or through internal speaker systems.” (Boesen, Paragraph 0095).
Regarding claim 15, Boesen teaches the plurality of sensors includes at least one inertial sensor configured to detect head movement and head orientation (Paragraph 0078).
Regarding claim 16, Flickinger teaches to: distinguish between idle, walking, running, cycling, swimming, sleeping, or other activities based on the sensor input (Paragraph 0004). (Note: it would have been obvious to a person of ordinary skill in the art before the effective filing date of the present invention to modify Flickinger and Mei to include any number of other sensors to determine other body characteristics of a user as an implementation choice.).
Regarding claim 17, Flickinger teaches the plurality of sensors includes at least one biometric sensor configured to measure physiological parameters (Paragraphs 0010, 0030, 0047).
Regarding claim 18, Flickinger teaches the processor is further configured to: track user responses to previously provided advice; and modify future delivery of advice based on the tracked user responses (Paragraphs 0015-0016, 0025, 0050 system trained by user input/feedback).
Regarding claim 19, Flickinger teaches the artificial intelligence framework includes at least one of: a machine learning model, a convolutional neural network, a hidden Markov model, natural language processing, or a deep neural network (Paragraphs 0015-0016, 0037, 0054).
Conclusion
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HEMANT PATEL
Primary Examiner
Art Unit 2694
/HEMANT S PATEL/ Primary Examiner, Art Unit 2694
