CTNF 18/988,608 CTNF 85629 Notice of Pre-AIA or AIA Status 07-03-fti AIA The present application is being examined under the pre-AIA first to invent provisions. Double Patenting 08-33 AIA 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. Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 10 and 11 of U.S. Patent No. 10771880. Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1, 10 and 11 of the patent include all limitations of current application except for few wording variations such as marked in bold in the table below. 08-36 AIA Claim 17 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of U.S. Patent No. 10771880 in view of Sheehy et al. (US20060140435A1) . Although the claims at issue are not identical, they are not patentably distinct from each other because Claim 18 of the patent include all limitations of current application except for “… and a processor configured to control and coordinate operations of the earphone.” However, earphones including a processor to control the operations of earphone is well-known in the art. Sheehy (US20060140435) teaches on [0036] and [0024], Figure 1 the he controller 146 includes a processor 150, and the processor 150 is coupled to a memory 152. Further, [0036] processor 120 can detect the position of the boom 226 as that will correspond to the state of the switch 134. The controller, specifically processor 120, responsive to the appropriate state of the switch 134 can adjust the level of the signal from the microphone, e.g., mute, disable, etc. the signal. As one of ordinary skill in the art would recognize, the size and location of the cam 328 can be adjusted to determine the rotational angle at which the state of the switch 134 changes. It would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention to further include a controller further including a processor to control the functions of the earphone. [0036]. Current Application:18988608 US Patent :10771880 17 . An earphone comprising: a housing formed from a radio transparent material and having a speaker housing integrally formed with and extending away from a first end of a tubular portion, wherein the speaker housing comprises a base portion and a cap coupled to the base portion; a first acoustic port formed through the cap of the speaker housing; a mesh covering the first acoustic port; a speaker disposed in the speaker housing and aligned to emit sound through the mesh and through the first acoustic port; a microphone aperture positioned on the tubular portion; a microphone disposed within the tubular portion and operatively coupled to receive sound through the microphone aperture; at least one acoustic vent formed through the base portion of the speaker housing to provide a path for acoustic pressure to vent; a user-interface touch control disposed along the housing; an antenna configured to receive wireless communication signals; a rechargeable battery disposed within the housing; battery charging circuitry coupled to the rechargeable battery and positioned within the housing, the battery charging circuitry configured to charge the rechargeable battery; and a processor configured to control and coordinate operations of the earphone. 1 . An earphone comprising: a housing formed from a radio transparent material and having a speaker housing integrally formed with and extending away from a first end of a tubular portion , wherein the speaker housing comprises a base portion and a cap coupled to the base portion; a first acoustic port formed through the cap of the speaker housing; a speaker disposed in the speaker housing and aligned to emit sound through the first acoustic port; a second acoustic port formed through the base portion of the speaker housing to provide a path for acoustic pressure to vent; wireless communication circuitry disposed within the housing; an antenna coupled to the wireless communication circuitry; a rechargeable battery disposed within the housing; and battery charging circuitry coupled to the rechargeable battery and positioned within the housing, the battery charging circuitry configured to charge the rechargeable battery. 18. An in-ear listening device comprising: a device housing comprising a speaker housing and a tubular portion extending away from the speaker housing, wherein the speaker housing includes a base portion integrally formed with a first end of the tubular portion and a cap coupled to the base portion; an audio port formed through the cap; a mesh screen coupled to the cap and disposed across the audio port; a speaker disposed in the speaker housing and aligned to emit sound through the audio port; a microphone disposed at a second end of the tubular portion opposite the first end; at least one acoustic vent formed through the speaker housing to provide a path for acoustic pressure to vent; a rechargeable battery disposed within the device housing; a wireless antenna disposed within the device housing; a user-interface touch control positioned along the tubular portion and operable to control a function of the in-ear listening device, the user-interface touch control comprising a sensor that detects motion and position of a user's finger along a touch control region of the tubular portion; battery charging circuitry coupled to the rechargeable battery and positioned within the device housing; and a plurality of electrical contacts disposed at an exterior surface of the device housing, the plurality of electrical contacts including at least one contact coupled to the battery charging circuitry. 1.An earbud comprising: a device housing including a speaker housing and an elongated tube integrally formed with and protruding away from the speaker housing; an audio port formed through the speaker housing; a mesh screen disposed across the audio port; a speaker disposed in the speaker housing and aligned to emit sound through the audio port; a microphone port formed at a distal end of the elongated tube; a microphone disposed in the elongated tube and operatively coupled to receive sound through the microphone port ; an acoustic vent formed through the speaker housing to provide a path for acoustic pressure to vent; a rechargeable battery disposed within the device housing; a wireless antenna disposed within the device housing; a user-interface touch control disposed on the device housing and operable to control a function of the earbud; battery charging circuitry coupled to the rechargeable battery and positioned within the device housing, the battery charging circuitry configured to charge the rechargeable battery when connected to an external power supply; and a plurality of electrical contacts disposed at an exterior surface of the device housing, the plurality of electrical contacts including at least one contact coupled to the battery charging circuitry and configured to receive electrical power from an external power supply. 10. The earbud of claim 1 wherein the device housing comprises a radio transparent material along a length of the elongated tube. 11. The earbud of claim 1 wherein the speaker housing comprises a base portion integrally formed with the elongated tube and a cap coupled to the base portion at an end of the speaker housing, and wherein the audio port is formed through the cap . Allowable Subject Matter 12-151-08 AIA 07-43 12-51-08 Claim s 2-9 and 18-20 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 12-16 are allowed. The independent Claim 12, identifies a uniquely distinct feature of “... a housing formed from a radio transparent material and having a speaker housing integrally formed with and extending away from a first end of a tubular portion, wherein the speaker housing comprises a base portion and a cap coupled to the base portion; a first acoustic port formed through the cap of the speaker housing; a speaker disposed in the speaker housing and aligned to emit sound through the first acoustic port..” The closest prior art to Sheehy (US2006/0140435A1) teaches headset 110 is wirelessly coupled to the communication device 140. The communication device 140 is a mobile telephone in this example. The communication device 140 includes a controller 146. The controller 146 is coupled to a user interface 148, a wireless communication circuit 144, a transmitter 168, and a receiver 170. Other parts of the communication device 140, such as a battery, are known to those of ordinary skill in the art and are not illustrated for the sake of simplicity. [0023] The user interface 148 of the communication device 140 can include a speaker 160, a microphone 162, a display 164, and a keypad 166, for example. In a manner well known to those of ordinary skill in the art, the speaker 160 and the microphone 162 of the communication device 140 can be disabled when the headset 110 is being used. [0024] The controller 146 includes a processor 150, and the processor 150 is coupled to a memory 152. The memory 152 can include space for at least an operating system 154 and other programs and data 156 that may be required for the processor 150 to control the communication device 140. [0025] The wireless communication circuit 144 is coupled to an antenna 142 for exchanging wireless signals with the wireless communication circuit 114 of the headset 110. Thus, the wireless communication circuit 144 of the communication device 140 can be a short-range communication circuit that follows the same communication specifications as the wireless communication circuit 114 of the headset 110. [0026] The transmitter 168 and the receiver 170 of the communication device 140 are coupled to an antenna 172 for communicating with a wireless communication network. Thus, with the transmitter 168 and the receiver 170, the communication device 140 can receive wireless communications, e.g., telephone calls, from the wireless communication network. The voice signals of one party of a telephone call can be transmitted by the headset 110 in a known manner. The prior art fails to anticipate or render the independent Claim 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. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duc Nguyen can be reached at 5712727503. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /SUNITA JOSHI/Primary Examiner, Art Unit 2691 Application/Control Number: 18/988,608 Page 2 Art Unit: 2691 Application/Control Number: 18/988,608 Page 3 Art Unit: 2691 Application/Control Number: 18/988,608 Page 4 Art Unit: 2691 Application/Control Number: 18/988,608 Page 5 Art Unit: 2691 Application/Control Number: 18/988,608 Page 6 Art Unit: 2691 Application/Control Number: 18/988,608 Page 7 Art Unit: 2691 Application/Control Number: 18/988,608 Page 8 Art Unit: 2691 Application/Control Number: 18/988,608 Page 9 Art Unit: 2691 Application/Control Number: 18/988,608 Page 10 Art Unit: 2691 Application/Control Number: 18/988,608 Page 11 Art Unit: 2691 Application/Control Number: 18/988,608 Page 13 Art Unit: 2691 Application/Control Number: 18/988,608 Page 14 Art Unit: 2691
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