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) 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 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 9 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 5 of U.S. Patent No.12273678. Although the claims at issue are not identical, they are not patentably distinct from each other because when 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 the following:
Current Application:19076796
US Patent: 12273678B2
9. A hearing aid comprising a battery; an active component powered by the battery, wherein operation of the active component causes a power drain from the battery, and the active component includes at least part of a radio frequency (RF) transceiver in the hearing aid; an element connected to the active component to measure current drawn by the active component from the batter, wherein element comprises a resistor, transformer, or Hall sensor; a noise sensitive component powered by the battery; and a processor powered by the battery, wherein the processor is configured to subtract a scaled noise estimate from an audio input signal from the noise sensitive component based on the current measured via the element.
5. A hearing aid comprising a battery; an active component powered by the battery, wherein operation of the active component causes a power drain from the battery, and the active component includes at least part of a radio frequency (RF) transceiver in the hearing aid; an element connected to the active component to measure current drawn by the active component from the batter, wherein element comprises a resistor, transformer, or Hall sensor; a noise sensitive component powered by the battery; and a processor powered by the battery, the processor being configured to obtain a measure of the power drain from the battery based on the current measured via the element, wherein the processor is configured to subtract a scaled noise estimate from an audio input signal from the noise sensitive component in response to detecting, based on the measure of the power drain, present usage of battery power by the active component, and wherein the scaled noise estimate is determined by the processor based on a predetermined estimate of induced noise obtained from storage.
II. A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention, so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claim 8 is rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 3 of prior U.S. Patent No. 12273678. This is a statutory double patenting rejection.
Current Application:19076796
US Patent: 12273678B2
8. A hearing aid comprising: a battery; an active component powered by the battery, wherein operation of the active component causes a power drain from the battery, and the active component includes at least part of a radio frequency (RF) transceiver in the hearing aid; an element connected to the active component to measure current drawn by the active component from the batter, wherein element comprises a resistor, transformer, or Hall sensor; a noise sensitive component powered by the battery; and a processor powered by the battery, the processor being configured to obtain a measure of the power drain from the battery based on the current measured via the element, wherein the processor is configured to subtract a scaled noise estimate from an audio input signal from the noise sensitive component in response to detecting, based on the measure of the power drain, present usage of battery power by the active component, and wherein the processor is further configured to perform at least one of the following determining, based on the current power usage, if the component is in an active state or a non-active state, and to apply noise reduction based on the activity state of the component; and estimating noise of an audio frequency range induced within the noise sensitive component.
3. A hearing aid comprising a battery; an active component powered by the battery, wherein operation of the active component causes a power drain from the battery, and the active component includes at least part of a radio frequency (RF) transceiver in the hearing aid; an element connected to the active component to measure current drawn by the active component from the batter, wherein element comprises a resistor, transformer, or Hall sensor; a noise sensitive component powered by the battery; and a processor powered by the battery, the processor being configured to obtain a measure of the power drain from the battery based on the current measured via the element, wherein the processor is configured to subtract a scaled noise estimate from an audio input signal from the noise sensitive component in response to detecting, based on the measure of the power drain, present usage of battery power by the active component, and wherein the processor is further configured to perform at least one of the following determine, based on the current power usage, if the component is in an active state or a non-active state, and to apply noise reduction based on the activity state of the component; and estimate noise of an audio frequency range induced within the noise sensitive component.
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.
Claim 4 recites the limitation " the element " in lines 2. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, claim 4 depends from Claim 2. Appropriate correction is required.
Claim 5, depends from Claim 4, is therefore rejected under 35.U.S.C. 112.
Claim 6, recites the limitation “the scaled noise” in line 2. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, claim 6 depends from Claim 2. Appropriate correction is required.
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 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.
1. Claims 1, 3 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Roeck (US 9763017) in view of Wilson (US2013/0077807).
As to Claim 1, Roeck teaches a hearing aid ( Figure 1, hearing aid 10) comprising: a battery(battery 26) ; an active component ( radio transceiver 22 implemented as a Bluetooth interface or other wireless interface, [0023]) powered by the battery( battery 26, [0024]), wherein operation of the active component causes a power drain from the battery,( the hearing instrument 10 also includes a power source. i.e., battery, 26 for powering the electrical components of the hearing instrument 10.
(9) The duty cycled operation of the RF unit 22 results in current peaks drawn by the RF unit 22 from the battery 26. See at least col. 3 lines 17-22), and the active component includes at least part of a radio frequency (RF) transceiver( RF transceiver unit 22, [0025} in the hearing aid; a noise sensitive component powered by the battery ( Roeck teaches T-coil antenna 14, picking up audio signal and induced magnetic field that are in audible range [0025]) and a processor (signal processing unit 16, [0029]) powered by the battery (battery 26, [0024]). Regarding the following:
wherein the processor is configured to subtract a noise estimate from an audio input signal from the noise sensitive component, when the radio frequency transceiver is intended to be active, Roeck teaches on FIG. 3, the audio signal processing unit 16 may comprise an adaptive noise cancelling filter 128 that acts as a phase canceller which is adapted to subtract a prototype distortion signal 34 (indicated schematically in FIG. 3) from the T-coil audio signal by means of an adder 36 during the interference points in time. The filter 128 preferably is adapted to adaptively match the prototype distortion signal to a real distortion signal generated in the T-coil audio signal as a result of the duty cycled operation of unit 22. See at least col. 3 lines 55-65. Regarding the following: wherein the noise estimate is based on an average waveform of advertising packages from the radio frequency transceiver, Roeck teaches a prototype distortion signal 34 that may correspond to a previously in the lab measured real distortion signal generated in the T-coil audio signal which may be stored in memory 20. See at least col. 3 lines 64-67 and col. 4 lines 1-5. Roeck does not explicitly teach the noise estimate is based on an average waveform of advertising packages from the radio frequency transceiver. However, Wilson in related field (Hearing aid) teaches using noise estimations to cancel electromagnetic interference (FIGS. 4 and 5) and acoustic feedback (FIG. 6). The disclosure concludes with examples of how streams of input signal samples may be averaged to estimate a waveform of a noise signal (FIGS. 7 and 8). See at least [0030]. Further, on [0048] By subtracting the waveform of the noise signal from the first signal, the noise reduction device may reduce or eliminate the noise from the first signal. Thus, a result of the subtraction may be a signal that at least substantially comprises just the desired signal. In other words, the noise reduction device may subtract the waveform of the noise signal from the first signal to provide an estimation of the desired signal. Then, the noise reduction device may send the desired signal to a receiver of the hearing aid. It would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention to estimate a waveform of noise signal which is subtracted from the audio input to provide an estimation of desired signal.
As to Claim 3, Roeck in view of Wilson teaches the limitations of Claim 1, and wherein the noise sensitive component is at least one of a coil, a telecoil, a microphone (Roeck teaches telecoil 14, Figures 2-4 and Wilson teaches telecoil 510, Figure 5 or microphone 610, Figure 6).
As to Claim 7, Roeck, in view of Wilson teaches the limitations of Claim 1, and Roeck teaches on [0023] the hearing instrument is a binaural hearing aid.
Allowable Subject Matter
Claims 2, 4-6 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 8 and 9 are allowed.
The independent Claim 8, identifies a uniquely distinct feature of “…wherein the processor is configured to subtract a scaled noise estimate from an audio input signal from the noise sensitive component in response to detecting, based on the measure of the power drain, present usage of battery power by the active component, and wherein the processor is further configured to perform at least one of the following determining, based on the current power usage, if the component is in an active state or a non-active state, and to apply noise reduction based on the activity state of the component; and estimating noise of an audio frequency range induced within the noise sensitive component.”
The independent Claim 9, identifies a uniquely distinct feature of “…an element connected to the active component to measure current drawn by the active component from the batter, wherein element comprises a resistor, transformer, or Hall sensor; a noise sensitive component powered by the battery; and a processor powered by the battery, wherein the processor is configured to subtract a scaled noise estimate from an audio input signal from the noise sensitive component based on the current measured via the element.”
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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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.
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/SUNITA JOSHI/Primary Examiner, Art Unit 2691
