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.
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Claims 1, 8-10 and 16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 13-15 of U.S. Patent No.11202137B1. Although the claims at issue are not identical, they are not patentably distinct from each other because when the claims in the pending application are broader than the ones in the patent, the broad claims in the pending application are rejected under obviousness type double patenting over previously patented narrow claims, In re Van Ornum and Stang, 214 USPQ 761. For example, claim 1 of the pending application has the same limitations as claim 1 of the patent except for an orientation sensor that is configured to detect an orientation of the wearable audio device;
Therefore, claim 1 of the pending application is broader than claim 1 of the patent.
Current Application: 18988132
USPatent:11202137B1
1. A wearable audio device, comprising: an electro-acoustic transducer for producing sound; a proximity sensor that is configured to detect when the wearable audio device is close to a user; an internal microphone positioned within a housing of the wearable audio device and configured to detect sound in a cavity formed at least in part by a portion of the housing; and a processor that is configured to estimate, based on at least the proximity sensor, whether the wearable audio device is in place on the user's body, and to estimate, based on the internal microphone, whether the user has completed handling of the wearable audio device.
16. A wearable audio device, comprising: an electro-acoustic transducer for producing sound; a proximity sensor that is configured to detect when the wearable audio device is close to a user; an internal microphone positioned within a housing of the wearable audio device and configured to detect sound in a cavity formed at least in part by a portion of the housing; and a processor that is configured to estimate, based on at least the proximity sensor, whether the wearable audio device is in place on the user's body, and to estimate, based on the internal microphone, whether the user has completed handling of the wearable audio device, wherein estimating whether the wearable audio device is in place on the user's body based on at least the proximity sensor has a lower relative confidence than estimating whether the user has completed handling of the wearable audio device based on the internal microphone.
1. A wearable audio device, comprising: an electro-acoustic transducer for producing sound; a proximity sensor that is configured to detect when the wearable audio device is close to a user; an orientation sensor that is configured to detect an orientation of the wearable audio device; an internal microphone positioned within a housing of the wearable audio device and configured to detect sound in a cavity formed at least in part by a portion of the housing; and a processor that is configured to estimate: (i) based on the proximity sensor and the orientation sensor, whether the wearable audio device is in place on the user's body, and (ii) based on the internal microphone, whether the user has completed handling of the wearable audio device.
Claims 1-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 13-15 of U.S. Patent No.12212912 B1. Although the claims at issue are not identical, they are not patentably distinct from each other because when the claims in the pending application are broader than the ones in the patent, the broad claims in the pending application are rejected under obviousness type double patenting over previously patented narrow claims, In re Van Ornum and Stang, 214 USPQ 761. For example, claim 1 of the pending application has the same limitations as claim 1 of the patent except for and estimate, based on the internal microphone, whether the user has completed handling of the wearable audio device after the estimating, based on at least the proximity sensor, whether the wearable audio device is in place on the user's body. Therefore, claim 1 of the pending application is broader than claim 1 and is anticipated by Claim 1 of the patent.
Current Application:18988132
US Patent: 12212912
A wearable audio device, comprising: an electro-acoustic transducer for producing sound; a proximity sensor that is configured to detect when the wearable audio device is close to a user; an internal microphone positioned within a housing of the wearable audio device and configured to detect sound in a cavity formed at least in part by a portion of the housing; and a processor that is configured to estimate, based on at least the proximity sensor, whether the wearable audio device is in place on the user's body, and to estimate, based on the internal microphone, whether the user has completed handling of the wearable audio device.
1. A wearable audio device, comprising: an electro-acoustic transducer for producing sound; a proximity sensor that is configured to detect when the wearable audio device is close to a user; an internal microphone positioned within a housing of the wearable audio device and configured to detect sound in a cavity formed at least in part by a portion of the housing; and a processor that is configured to: estimate, based on at least the proximity sensor, whether the wearable audio device is in place on the user's body, and to estimate, based on the internal microphone, whether the user has completed handling of the wearable audio device; and estimate, based on the internal microphone, whether the user has completed handling of the wearable audio device after the estimating, based on at least the proximity sensor, whether the wearable audio device is in place on the user's body.
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.
Claims 1 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Adam et al. (EP 3291573 A1), hereinafter “Adam” in view of Shetye et al. (US9838812).
As to Claim 1, Adam teaches a wearable audio device (Earbud 24, Figures 1 and 2, [0016]), comprising: an electro-acoustic transducer for producing sound (speakers 34); a proximity sensor that is configured to detect when the wearable audio device is close to a user (proximity sensors 32 for detecting if the earbud is inserted into user’s ear canal or in other states, [0019],[0026], Adam does not explicitly teach: an internal microphone positioned within a housing of the wearable audio device and configured to detect sound in a cavity formed at least in part by a portion of the housing. Shetye in related field (Hearing aid) teaches an internal microphone or inner microphone 18 disposed within cavity 16. See at least col. 5 lines 15-20. It would have been obvious to one of ordinary skill in the art, before the effective filling date of the invention to further include an inner microphone disposed within the cavity of the earphone housing to pick up sounds from the ear canal of the user for further signal processing. Adam in view of Shetye further teaches a processor that is configured to estimate, based on at least the proximity sensor, whether the wearable audio device is in place on the user's body,[0026] teaches Control circuitry 28 may use optical proximity sensors, accelerometers, contact sensors, and other sensors to form a system for in-ear detection. The system may, for example, detect when an earbud is inserted into a user's ear canal or is in other states using optical proximity sensor and accelerometer (motion sensor) measurements. Also, see [0029], [0033], [0038] – [0040] and Figures 11. Further, regarding the following: and to estimate, based on the internal microphone, whether the user has completed handling of the wearable audio device, Shetye teaches the transfer function defined by the inner signal of the inner microphone 18 relative to the signal driving the speaker 28 typically differs for the two operating states. In particular, the magnitude characteristic of the transfer function for the on head operating state is different from the magnitude characteristic of the transfer function for the off head operating state. See at least col. 6 lines 45-50. Thus, Shetye teaches the inner signal of the inner microphone indicates two different operating states such as hearing device worn on head or off head thus indicating the wearing state is completed or not.
As to Claim 3, Adam in view of Shetye teaches the limitations of Claim 1 and, wherein the proximity sensor comprises a capacitive proximity sensor, Adam on [0019] teaches sensors 32 may be capacitive.
Claims 2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Adam et al. (EP 3291573 A1), hereinafter “Adam” in view of Shetye et al. (US9838812) in further view of Freund et al. (US 20190052952A1).
As to Claim 2, Adam in view of Shetye teaches the limitations of Claim 1, and regarding the following further comprising at least one earcup that is configured to be located on or over an ear of a wearer when the wearable audio device is placed on the head, wherein the proximity sensor and the internal microphone are both positioned in an earcup, Adam teaches the proximity sensors S1 and S2 located within the ear buds 24 and Shetye teaches an internal microphone or inner microphone 18 disposed within cavity 16 of the earphone housing. See at least col. 5 lines 15-20. Adam in view of Shetye does not explicitly teach, the earphone device is worn on the head of the user and the sensors are located within the earcups housing. However, earphones or earplugs or headphones or headsets come in various structures including a headset worn on the head of the user with an earcup worn on the ear of the user including sensors located within in its housing. Freund in related field (Headphones) teaches [0034] The inventive headphones have been described as including orientation sensors to determine whether the headphones are being worn on a user's head or are being used as speakers. However, in other embodiments of the invention, a switch sensor makes this determination. For example, a switch sensor may be located at the interface between the earcup and head band to detect the orientation of the earcup relative to the headband. As another example, a switch sensor may be located in the recess of the seat to detect when the headphones are retained within the recess and thus are being used as speakers. As yet another example, a switch sensor or other type of sensor may be located on the earcup, facing in the same direction as the speaker. This sensor may detect when a user's head is being pressed against the earcup. It would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention to locate the sensors within an earcup of a headphone device depending on desired structure of the headset device.
As to Claim 4, Adam in view of Shetye teaches the limitations of Claim 1, and regarding the following further comprising two earcups that are configured to be located on or over an ear of a wearer when the wearable audio device is placed on the head, Adam teaches the proximity sensors S1 and S2 located within the ear buds 24 and Shetye teaches an internal microphone or inner microphone 18 disposed within cavity 16 of the earphone housing. See at least col. 5 lines 15-20. Adam in view of Shetye does not explicitly teach, the earphone device is worn on the head of the user and the sensors are located within the earcups housing. However, earphones or earplugs or headphones or headsets come in various structures including a headset worn on the head of the user with an earcup worn on the ear of the user including sensors located within in its housing. Freund in related field (Headphones) teaches [0034] The inventive headphones have been described as including orientation sensors to determine whether the headphones are being worn on a user's head or are being used as speakers. However, in other embodiments of the invention, a switch sensor makes this determination. For example, a switch sensor may be located at the interface between the earcup and head band to detect the orientation of the earcup relative to the headband. As another example, a switch sensor may be located in the recess of the seat to detect when the headphones are retained within the recess and thus are being used as speakers. As yet another example, a switch sensor or other type of sensor may be located on the earcup, facing in the same direction as the speaker. This sensor may detect when a user's head is being pressed against the earcup. It would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention to locate the sensors within an earcup of a headphone device worn on or over the ear of the user depending on desired structure of the headset device.
Allowable Subject Matter
Claims 5-15 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.
Claims 16-20 are allowed. The independent Claim 16, identifies a uniquely distinct feature of “ A wearable audio device, comprising… a processor that is configured to estimate, based on at least the proximity sensor, whether the wearable audio device is in place on the user's body, and to estimate, based on the internal microphone, whether the user has completed handling of the wearable audio device, wherein estimating whether the wearable audio device is in place on the user's body based on at least the proximity sensor has a lower relative confidence than estimating whether the user has completed handling of the wearable audio device based on the internal microphone.” The prior arts fail to anticipate or render the claims obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUNITA JOSHI whose telephone number is (571)270-7227. The examiner can normally be reached 8-3.
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/SUNITA JOSHI/Primary Examiner, Art Unit 2691
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