DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 09/25/2026 has been entered.
Response to Arguments
Applicant’s arguments have been fully considered. They are not persuasive as to the double patenting rejection, and they are moot in part and other not persuasive as to the rejections under 35 U.S.C. § 103, which are made on new grounds necessitated by the amendment.
Double Patenting. Applicant asserts that the amendments render the claims patentably distinct (Remarks, p.6) but identifies no distinguishing limitation, which does not comply with 37 CFR 1.111(b). The rejection is maintained.
Claims 1 and 9. Applicant argues that Sirois’ driven-right leg electrode is an output electrode and that neither Sirois nor Xu has an electrode that identifies common-mode signals (Remarks pp.7-8). The argument is moot as to the driven-right leg electrode, which no longer relied upon. The third electrode is now taught by Fischer, whose ground electrode is positioned “to detect sources of electrical noise common to both electrodes 602 and 604” (¶ 0052). To the extend Applicant argues that the common-mode signal may not be derived from electrode signals, the claims recite no such exclusion, and the specification states only that the third electrode “can be utilized to assist in the identification of common-mode signals across the set of electrodes 302, 304, 306” (PGPUB ¶ 0055). Limitations from the specification are not read into the claims. In re Van Geuns, 988 F.2d 1181 (Fed. Cir. 1993).
Applicant’s hindsight argument (Remarks p. 9) is not persuasive because the reasons to combine come from the references: Fischer ¶ 0049 and Xu ¶¶ 0013 and 0066. In re McLaughlin, 443 F.2d 1392 (CCPA 1971).
Dependent claims. Applicant relies on the arguments for claims 1 and 9 and presents no argument as to the added limitations (Remarks pp. 9-11). Those arguments are not persuasive for the reasons above.
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.
Claim(s) 1-2, 4-5, 9-10, 12, 14, and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sirois; Alain et al., US 20220276723 A1] in view of [Fischer; Russell J. et al., US 20070112277 A1] and further in view of [Xu; Jiawei et al., US 20150005585 A1].
Regarding claim 1:
Sirois discloses:
1. An earbud (300) [Sirois: Fig.7: earbud 700] comprising:
a first electrode (302) [Sirois: Fig.1: electrode 102; Fig.7: electrode 701] positioned on the earbud (300) [Sirois: Fig.7: earbud 700; ¶ 0107: “The earbud 700 comprises two electrodes 701 and 702 located on an external surface of the earbud”] to physically contact a first anatomic location of an ear of a user when the earbud (300) [Sirois: Fig.7: earbud 700] is worn by the user [Sirois: ¶ 0109: “they can be located in the ear canal, as explained with reference to earbud 700, in the inferior concha, the superior concha, the ear lobe, the tragus, etc., or anywhere else around the ear”], the first electrode (302) [Sirois: Fig.1: electrode 102; Fig.7: electrode 701] configured to detect a first electrophysiologic signal exhibited by the user [Sirois: ¶ 0060: “one electrode could be the reference electrode and one electrode could be the measurement electrode”; ¶ 0108: “a measurement electrode recording M=Signal+Noise”; Examiner: The measurement electrode detects the first electrophysiological signal.];
a second electrode (304) [Sirois: Fig.1: electrode 103; Fig.7: electrode 702] positioned on the ear bud (300) [Sirois: Fig.7: earbud 700] to physically contact a second anatomic location of the ear when the earbud (300) [Sirois: Fig.7: earbud 700] is worn by the user [Sirois: ¶ 0109: “both the measurement and the reference electrode are located on the same earbud”], the second electrode (304) [Sirois: Fig.1: electrode 103; Fig.7: electrode 702] configured to detect a baseline electrophysiologic signal exhibited by the user [Sirois: ¶ 0108: “the reference electrode at a location that minimizes signal collection from the source”; Examiner: The signal detected by the reference electrode is a baseline electrophysiological signal, consistent with the specification’s “reference or baseline electrophysiologic signal” (PGPUB ¶ 0055).];
a third electrode (306) [Sirois: ¶ 0060: “In embodiments in which there were more than two electrodes the third could be another measurement electrode, a driven-right-leg electrode, or a ground electrode”; Examiner: The ground electrode alternative is relied upon.] positioned on the earbud (300) [Sirois: Fig.7: earbud 700; ¶ 0060: “ a system could include two elements which each include three electrodes for a total of six”; Examiner: Each element is an earbud carrying three electrodes.] to physically contact a third anatomic location of the ear when the earbud (300) [Sirois: Fig.7: earbud 700] is worn by the user [Sirois:¶ 0109: “ or anywhere else around the ear”],
and a controller (352) [Sirois: Fig1.: processing block 104] coupled to the first electrode (302) [Sirois: Fig.1: electrode 102 connected to processing block 104], the second electrode (304) [Sirois: Fig.1: electrode 103 connected to processing block 104], and the third electrode (306) [Sirois: ¶ 0031: “The system can also include a “Ground” electrode, used to establish a common ground between the electronics and the body of the subject”; Examiner: The ground electrode is electrically connected to the electronics, which include the processing block.], the controller (352) [Sirois: Fig1.: processing block 104] programmed to:
receive the first electrophysiologic signal, the baseline electrophysiologic signal [Sirois: ¶ 0034: “The discretized and digitized signal can then be transmitted to the processing block of the system, such as processing block 104 of FIG. 1”],
determine a gesture being performed by the user [Sirois: ¶ 0038: “The bioelectric signal can be analyzed in order to recognize a gesture signal in the bioelectric signal”] by comparing the first electrophysiologic signal to the baseline electrophysiologic signal [Sirois: ¶ 0108: “a differential signal D=M−R=Signal”; ¶ 0035: “channels recombination, channels re-referencing”; Examiner: The differential signal between the measurement and reference electrodes is a comparison of the first signal to the baseline signal.]
transmit the determined gesture to an external device (380) [Sirois: Fig.1: Personal User Device 120] for control thereof [Sirois: ¶ 0043: “ the control signal can be used to perform certain actions or trigger certain events for devices associated with the system depending on the gesture performed by the user as recognized from the gesture signal”; ¶ 0037: “The system can communicate with the electronic devices either wirelessly, for example via Bluetooth, WiFi, etc., or via a wired connection”].
However, Sirois does not expressly disclose:
the third electrode configured to identify common-mode signals across the first electrode and the second electrode.
Fischer discloses:
the third electrode (306) [Fischer: Fig.6A: ground electrode 606; Fg.1: ground electrode 22c; ¶ 0051: “ With respect to the third electrode, a ground electrode, there are a number of options for placement”] configured to identify common-mode signals across the first electrode (302) [Fischer: Fig.6A: active electrode 602] and the second electrode (304) [Fischer: Fig.6A: reference electrode 604; ¶ 0052: “Ground electrode 606 is provided in close proximity to reference electrode 604, but sufficiently distanced from active electrode 602, to detect sources of electrical noise common to both electrodes 602 and 604”; ¶ 0051: “The potential of both active and reference leads are measured relative to this common ground electrode and only their difference is amplified”; Examiner: Electrical noise common to both the active and reference electrodes is a common-mode signal across those electrodes. An electrode positioned to detect that noise, and relative to which both potentials are measured is configured to identify it under the broadest reasonable interpretation consistent with ¶ 0055 (PGPUB) of the specification.].
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Sirois so that its third electrode, which Sirois states may be a ground electrode (¶ 0060), is positioned and used as the common ground electrode of Fischer, which detects noise common to the measurement and reference electrodes and relative to which their potentials are measured (¶¶ 0051, 0052), because Fischer teaches that three electrodes used in this way “eliminate electrical noise sources common to both the active and reference electrodes during measurement” (¶ 0049). Sirois and Fischer both measure EMG and EEG signals with electrodes carried on a device worn in the ear, and Sirois already provides the ground electrode, so the modification changes only its placement and use and yields the predictable result of reduced common noise in the measured signal.
However, Sirois in view of Fischer does not expressly disclose:
and the common-mode signals, and removing the common-mode signals identified by the third electrode.
Xu discloses:
and the common-mode signals [Xu: Fig.3: adder 39 within DSP 30 receiving Vout1 and Vout_ref; ¶ 0057: “The digital outputs from the two active electrodes are added by adder 39 in order to derive a common mode signal”; ¶ 0062: “The common mode signal extraction is performed in the signal processor 30”; Examiner: The processor receives the digitized electrode signals and the common mode signal is extracted from them.] and removing the common-mode signals identified by the third electrode (306) [Xu: Fig.3L subtractor 31 within DSP 30; subtractors 41 and 43; ¶ 0061: “The common mode feedback signal CMFB is thus subtracted from the two electrode signals”; ¶ 0062: “The system reduces the effective input common mode signal”; Examiner: The processor extracts the common mode signal and directs its subtraction from the electrode signals, and subtractor 31 outputs the difference of the two electrodes signals. In the combination, the electrode signals are those measured relative to the third electrode, so the common mode signal removed is the one identified by the third electrode]
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the processing block of Sirois in view of Fischer to receive the common mode signal extracted from the electrode signals measured relative to the third electrode and to remove that signal before recognizing the gesture, as taught by Xu (¶¶ 0057, 0061, 0062) , because the arrangement added from Fischer reduces the common noise only by amplifying the difference between the two leads (¶ 0051), and Xu teaches that extracting the common mode signal in the signal processor allows the processing to “be performed in the digital domain, which is generally more flexible and power/area efficient than in the analog domain” (¶ 0013) and achieves a very high common-mode rejection ratio (¶ 0066). Sirois’ processing block already receives the digitized channels and performs channel recombination and re-referencing on them (¶¶ 0034, 0035), so performing the removal there applies Xu’s known technique to a known device and yields the predictable result of gesture signals with less common-mode interference. Xu, like Sirois, and Fischer, concerns common-mode interference in EEG and EMG biopotential acquisition.
Regarding claim 2:
Sirois discloses:
2. The earbud of claim 1,
wherein the first electrophysiologic signal and the baseline electrophysiologic signal comprise one or more of an electrocardiogram (ECG), an electroencephalogram (EEG), or an electromyography (EMG) [Sirois: ¶ 0004: “ These electrodes can be installed in audio earbud devices or an earpiece to capture different types of electric signals, such as the EEG, ECG, EMG, and EOG signals mentioned above”; ¶ 0025: “Electrodes consisting of a conductive material, for example metal, can be put in contact with the skin and capture electrical potential changes at the surface of the skin. Those electrodes can be referred to as surface electrodes. This technique is called EMG.”; ¶ 0027: “a muscular activity of the masseter muscle can be measured”].
Regarding claim 4:
Sirois discloses:
4. The earbud of claim 1,
wherein the external device comprises a virtual reality headset [Sirois: ¶ 0044: “Several control functions can be performed by using the system described herein, such as play/pause music, for example using True Wireless earphones, open/close push-to-talk communication on a walkie talkie, grasp an object using VR Headset, trigger noise cancellation on sleep buds, trigger ASSR test on hearing aids, among others”; Examiner: The VR headset is an electronic device controlled by the recognized gesture.].
Regarding claim 5:
Sirois discloses:
5. The earbud of claim 1,
wherein the first electrode (302) [Sirois: Fig.1: electrode 102; Fig.7: electrode 701], the second electrode (304) [Sirois: Fig.1: electrode 103; Fig.7: electrode 702], and the third electrode (306) [Sirois: ¶ 0060: “In embodiments in which there were more than two electrodes the third could be another measurement electrode, a driven-right-leg electrode, or a ground electrode”; Examiner: The ground electrode alternative is relied upon.] comprise at least one of an elastomer, silicone, a metal, a ceramic, a carbon nanotube material, composites thereof, or combinations thereof [Sirois: ¶ 0116: “Candidate materials can include composite polymers, such as silicone (e.g., PDMS, Ecoflex, etc.) mixed with electronic-conductive particles (e.g., carbon black, CNT, graphite, Ag, etc.) and/or ionic-conductive particles (e.g., Ag/AgCl, etc.). Candidate materials can also include intrinsically conductive polymers, which include polymers that have conductive properties due to their original composition (e.g., PEDOT:PSS) mixed with additive to give them water resistant, stretchable or adhesive properties (e.g., waterborne polyurethane—WPU, D-sorbitol). Candidate materials can also include metal-coated fabric (e.g., coating using silver and silver chloride) and other suitable materials. The examples provided herein are not limiting examples of candidate materials”; ¶ 0117: “In specific embodiment of the invention, the electrodes can comprise a surface of composite polymer. The composite polymer can be a rubber polymer mixed with conductive particles. The rubber polymer can be soft silicone. The conductive particles can include at least one of carbon black, carbon nanotubes, graphite, silver and silver chloride. In specific embodiment of the invention, the electrodes comprise an intrinsically conductive polymer. The intrinsically conductive polymer can have a conductive original composition and a water-resistant additive”].
Regarding claim 9:
Sirois discloses:
9. A system [Sirois: Fig.1: system 100 together with personal user device 120] comprising:
an earbud [Sirois: Fig.7: earbud 700] comprising:
a first electrode (302) [Sirois: Fig.1: electrode 102; Fig.7: electrode 701] positioned on the earbud (300) [Sirois: Fig.7: earbud 700; ¶ 0107: “The earbud 700 comprises two electrodes 701 and 702 located on an external surface of the earbud”] to physically contact a first anatomic location of an ear of a user when the earbud (300) [Sirois: Fig.7: earbud 700] is worn by the user [Sirois: ¶ 0109: “they can be located in the ear canal, as explained with reference to earbud 700, in the inferior concha, the superior concha, the ear lobe, the tragus, etc., or anywhere else around the ear”],
the first electrode (302) [Sirois: Fig.1: electrode 102; Fig.7: electrode 701] configured to detect a first electrophysiologic signal exhibited by the user [Sirois: ¶ 0060: “one electrode could be the reference electrode and one electrode could be the measurement electrode”; ¶ 0108: “a measurement electrode recording M=Signal+Noise”; Examiner: The measurement electrode detects the first electrophysiological signal.],
a second electrode (304) [Sirois: Fig.1: electrode 103; Fig.7: electrode 702] positioned on the earbud (300) [Sirois: Fig.7: earbud 700] to physically contact a second anatomic location of the ear when the earbud (300) [Sirois: Fig.7: earbud 700] is worn by the user [Sirois: ¶ 0109: “both the measurement and the reference electrode are located on the same earbud”],
the second electrode (304) [Sirois: Fig.1: electrode 103; Fig.7: electrode 702] configured to detect a baseline electrophysiologic signal exhibited by the user [Sirois: ¶ 0108: “the reference electrode at a location that minimizes signal collection from the source”; Examiner: The signal detected by the reference electrode is a baseline electrophysiological signal, consistent with the specification’s “reference or baseline electrophysiologic signal” (PGPUB ¶ 0055).],
a third electrode (306) [Sirois: ¶ 0060: “In embodiments in which there were more than two electrodes the third could be another measurement electrode, a driven-right-leg electrode, or a ground electrode”; Examiner: The ground electrode alternative is relied upon.] positioned on the earbud (300) [Sirois: Fig.7: earbud 700; ¶ 0060: “ a system could include two elements which each include three electrodes for a total of six”; Examiner: Each element is an earbud carrying three electrodes.] to physically contact a third anatomic location of the ear when the earbud (300) [Sirois: Fig.7: earbud 700] is worn by the user [Sirois:¶ 0109: “ or anywhere else around the ear”],
a controller (352) [Sirois: Fig1.: processing block 104] coupled to the first electrode (302) [Sirois: Fig.1: electrode 102 connected to processing block 104], the second electrode (304) [Sirois: Fig.1: electrode 103 connected to processing block 104], and the third electrode (306) [Sirois: ¶ 0031: “The system can also include a “Ground” electrode, used to establish a common ground between the electronics and the body of the subject”; Examiner: The ground electrode is electrically connected to the electronics, which include the processing block.], the controller [Sirois: Fig.1; Examiner: As shown in Fig.1, the electrodes are connected to the processing block.] programmed to:
receive the first electrophysiologic signal, the baseline electrophysiologic signal, and the common-mode signals [Sirois: ¶ 0034: “The discretized and digitized signal can then be transmitted to the processing block of the system, such as processing block 104 of FIG. 1”]
determine a gesture being performed by the user [Sirois: ¶ 0036: “The processing block can perform prediction operations that include, for example, classification label, for example to identify certain muscle contractions, identify outlier signals, etc”; ¶ 0038: “The bioelectric signal can be analyzed in order to recognize a gesture signal in the bioelectric signal”] by comparing the first electrophysiologic signal to the baseline electrophysiologic signal [Sirois: ¶ 0108: “a differential signal D=M−R=Signal”; ¶ 0035: “channels recombination, channels re-referencing”; Examiner: The differential signal between the measurement and reference electrodes is a comparison of the first signal to the baseline signal.]
an external device (380) [Sirois: Fig.1: Personal User Device 120] communicably coupled to the earbud [Sirois: Fig.7: earbud 700; ¶ 0037: “The system can communicate with the electronic devices either wirelessly, for example via Bluetooth, WiFi, etc., or via a wired connection”], the external device (380) [Sirois: Fig.1: Personal User Device 120] programmed to:
receive the determined gesture from the controller (352) [Sirois: Fig.1: processing block 104] of the earbud (300) [Sirois: Fig.7: earbuyd 700; ¶ 0037: “The processing block can also perform data transfer operations that include, for example, transfer of recorded data and/or the output of any of signal processing and/or prediction to an electronic device. The electronic device can be a personal user device, such as personal user device 120”; Examiner: The output of the prediction operation is the gesture determined by the processing block, and the personal user device receives it.], and
perform an action in response to the determined gesture [Sirois: ¶ 0043: “ the control signal can be used to perform certain actions or trigger certain events for devices associated with the system depending on the gesture performed by the user as recognized from the gesture signal. In this way, the interface signal can be used to control a play/pause function, a start/end call function, and the like”; ¶ 0044: “ Electronic devices, such as personal user device 120 of FIG. 1, can then be controlled by performing gestures and recognizing the gesture signals in the bioelectric signal”; Examiner: A personal user device that performs a play, pause or call function in response to the received signal is programmed to perform that action.].
However, Sirois does not expressly disclose:
the third electrode configured to identify common-mode signals across the first electrode and the second electrode.
Fischer discloses:
the third electrode (306) [Fischer: Fig.6A: ground electrode 606; Fg.1: ground electrode 22c; ¶ 0051: “ With respect to the third electrode, a ground electrode, there are a number of options for placement”] configured to identify common-mode signals across the first electrode (302) [Fischer: Fig.6A: active electrode 602] and the second electrode (304) [Fischer: Fig.6A: reference electrode 604; ¶ 0052: “Ground electrode 606 is provided in close proximity to reference electrode 604, but sufficiently distanced from active electrode 602, to detect sources of electrical noise common to both electrodes 602 and 604”; ¶ 0051: “The potential of both active and reference leads are measured relative to this common ground electrode and only their difference is amplified”; Examiner: Electrical noise common to both the active and reference electrodes is a common-mode signal across those electrodes. An electrode positioned to detect that noise, and relative to which both potentials are measured is configured to identify it under the broadest reasonable interpretation consistent with ¶ 0055 (PGPUB) of the specification.].
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Sirois so that its third electrode, which Sirois states may be a ground electrode (¶ 0060), is positioned and used as the common ground electrode of Fischer, which detects noise common to the measurement and reference electrodes and relative to which their potentials are measured (¶¶ 0051, 0052), because Fischer teaches that three electrodes used in this way “eliminate electrical noise sources common to both the active and reference electrodes during measurement” (¶ 0049). Sirois and Fischer both measure EMG and EEG signals with electrodes carried on a device worn in the ear, and Sirois already provides the ground electrode, so the modification changes only its placement and use and yields the predictable result of reduced common noise in the measured signal.
However, Sirois in view of Fischer does not expressly disclose:
and the common-mode signals, and removing the common-mode signals identified by the third electrode.
Xu discloses:
and the common-mode signals [Xu: Fig.3: adder 39 within DSP 30 receiving Vout1 and Vout_ref; ¶ 0057: “The digital outputs from the two active electrodes are added by adder 39 in order to derive a common mode signal”; ¶ 0062: “The common mode signal extraction is performed in the signal processor 30”; Examiner: The processor receives the digitized electrode signals and the common mode signal is extracted from them.] and removing the common-mode signals identified by the third electrode (306) [Xu: Fig.3L subtractor 31 within DSP 30; subtractors 41 and 43; ¶ 0061: “The common mode feedback signal CMFB is thus subtracted from the two electrode signals”; ¶ 0062: “The system reduces the effective input common mode signal”; Examiner: The processor extracts the common mode signal and directs its subtraction from the electrode signals, and subtractor 31 outputs the difference of the two electrodes signals. In the combination, the electrode signals are those measured relative to the third electrode, so the common mode signal removed is the one identified by the third electrode]
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the processing block of Sirois in view of Fischer to receive the common mode signal extracted from the electrode signals measured relative to the third electrode and to remove that signal before recognizing the gesture, as taught by Xu (¶¶ 0057, 0061, 0062) , because the arrangement added from Fischer reduces the common noise only by amplifying the difference between the two leads (¶ 0051), and Xu teaches that extracting the common mode signal in the signal processor allows the processing to “be performed in the digital domain, which is generally more flexible and power/area efficient than in the analog domain” (¶ 0013) and achieves a very high common-mode rejection ratio (¶ 0066). Sirois’ processing block already receives the digitized channels and performs channel recombination and re-referencing on them (¶¶ 0034, 0035), so performing the removal there applies Xu’s known technique to a known device and yields the predictable result of gesture signals with less common-mode interference. Xu, like Sirois, and Fischer, concerns common-mode interference in EEG and EMG biopotential acquisition.
Regarding claim 10:
The limitations of claim 10 have been addressed in the discussion of claim 2 above.
Regarding claim 12:
The limitations of claim 12 have been addressed in the discussion of claim 4 above.
Regarding claim 14:
The limitations of claim 14 have been addressed in the discussion of claim 5 above.
Regarding claim 17:
The limitations of claim 17 have been addressed in the discussion of claim 8 above.
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.
Claim(s) 3 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sirois; Alain et al., US 20220276723 A1] in view of [Fischer; Russell J. et al., US 20070112277 A1], [Xu; Jiawei et al., US 20150005585 A1] and further in view of [Kidmose; Preben et al., US 20220031217 A1].
Regarding claim 3:
Sirois in view of Fischer and Xu discloses:
3. The earbud of claim 1.
However, Sirois in view of Fischer and Xu does not expressly disclose:
wherein the first electrode (302), the second electrode (304), and the third electrode (306) comprise a size from about 5 mm to about 6 mm.
Kidmose discloses:
wherein the first electrode (302), the second electrode (304), and the third electrode (306) comprise a size from about 5 mm to about 6 mm [Kidmose: ¶ 0021: “The electrode has a base diameter D. In a preferred embodiment, the base diameter D is between 1.0 and 5.0 mm”; Examiner: The specification defines “about” as plus or minus 10% (PGPUB ¶ 0069), so the claimed range begins with 4.5 However, the prior art does not teach or suggest either singularly or in combination the at least claimed “XXX”, in combination with the other recited claim features. and overlaps Kidmose’s range from 4.5 to 5.0 mm].
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to make each electrode of Sirois in view of Fischer and Xu with a diameter within the range taught by Kidmose (¶ 0021), including the portion that overlaps the claimed range, because Sirois does not state an electrode size and Kidmose teaches that the size of a dry electrode worn in the ear governs its performance: “electrode impedance is inversely proportional to its contact surface area”, while “skin surface cannot be considered planar unless the electrode diameter is very small” (¶ 0018). Electrode size is thus a variable range known to affect impedance and skin contact, and selecting a value within Kidmose’s disclosed range would have been routine. Kidmose, like Sirois, concerns dry electrodes on an ear-worn device for EEG and EMG signals.
Regarding claim 11:
The limitations of claim 11 have been addressed in the discussion of claim 3 above.
Claim(s) 6-7 and 15-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sirois; Alain et al., US 20220276723 A1] in view of [Fischer; Russell J. et al., US 20070112277 A1], [Xu; Jiawei et al., US 20150005585 A1] and further in view of [Andersen; Mikael et al., US 20190282119 A1].
Regarding claim 6:
Sirois in view of Fischer and Xu discloses:
6. The earbud of claim 1.
However, Sirois in view of Fischer and Xu does not expressly disclose:
wherein the first anatomic location comprises a concha, the second anatomic location comprises a tragus, and the third anatomic location comprises a triangular fossa.
Andersen discloses:
wherein the first anatomic location comprises a concha [Andersen: Fig.1-2; ¶ 0042: “As shown in FIG. 2, the bendable arm 34 provides a concha part, which is adapted to follow the shape of a concha 12 of the ear 10. Thereby, the concha part of the bendable arm 34 fits closely to at least one protrusion of the concha 12 and exerts thereby a pressure such that at least one of the external ear electrodes 32 is pressed against the skin of the person when in use” ], the second anatomic location comprises a tragus [Andersen: ¶ 0053: “Furthermore, an electrode placement at Tragus is preferred since this area allows for extra pressure by adding additional material to the bendable arm”], and the third anatomic location comprises a triangular fossa [Andersen: ¶ 0052: “In another form, the external ear part can extend towards or into the helix, triangular fossa, crura of antihelix or Scapha region where an electrode may be arranged”].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have included the concept above of Andersen in the invention of Sirois in view of Fischer and Xu to yield the predictable result of measuring biosignals at different locations of the ear.
Regarding claim 15:
The limitations of claim 15 have been addressed in the discussion of claim 6 above.
Claim(s) 7 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sirois; Alain et al., US 20220276723 A1] in view of [Fischer; Russell J. et al., US 20070112277 A1], [Xu; Jiawei et al., US 20150005585 A1], [Cain; Robert C., US 20060094974 A1] and further in view of [Andersen; Mikael et al., US 20190282119 A1].
Regarding claim 7:
Sirois in view of Fischer and Xu discloses:
7. The earbud of claim 1,
wherein the first anatomic location comprises a concha [Sirois: Fig.2: inferior concha 252, superior concha 253; ¶ 0028: “For example in the ear canal 251, inferior concha 252, superior concha 253, ear lobe 254, tragus 255, etc., or around the ear 260”],
However, Sirois in view of Fischer and Xu does not expressly disclose:
the second anatomic location comprises a triangular fossa.
Cain discloses:
the second anatomic location comprises a triangular fossa [Cain: Fig.3a: electrode 102 in triangular fossa area 104 of ear 100, with a second electrode 112 on the same ear; ¶ 0023: “A brain wave detection electrode 102 is positioned in the triangular fossa area 104 of the ear 100”; Examiner: cain is relied upon for the triangular fossa as a location for one electrode of a pair carried on a single ear.].
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to place the reference electrode of Sirios in view of Fischer and Xu at the triangular fossa shown by Cain (¶ 0023), because Sirois teaches placing the reference electrode “at a location that minimizes signal collection from the source” (¶ 0108), the source in Sirois being the masseter muscle below the ear (¶ 0027; Fig.2: masseter muscle 201), and Cain teaches that the triangular fossa, in the upper part of the ear, forms, “a type of natural basket for seating an electrode” (¶ 0018).
However, Sirois in view of Fischer, Xu and Cain does not expressly disclose:
and the third anatomic location comprises a helix.
Anderson discloses:
and the third anatomic location comprises a helix [Andersen: ¶ 0052: “In another form, the external ear part can extend towards or into the helix, triangular fossa, crura of antihelix or Scapha region where an electrode may be arranged”].
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to place the third electrode of Sirois in view of Fischer, Xu and Cain at the helix as taught by Anderson (¶ 0052), because Fischer places its ground electrode “in close proximity to reference electrode 604, but sufficiently distanced from active electrode 602” (¶ 0052), and the helix adjoins the triangular fossa where the reference electrode is seated (Cain ¶ 0023; Fig.3a).
Regarding claim 16:
The limitations of claim 16 have been addressed in the discussion of claim 7 above.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sirois; Alain et al., US 20220276723 A1] in view of [Fischer; Russell J. et al., US 20070112277 A1], [Xu; Jiawei et al., US 20150005585 A1] and further in view of [Katsnelson; Yakov et al., US 10556108 B1].
Regarding claim 8:
Sirois in view of Fischer and Xu discloses:
8. The earbud of claim 1,
wherein the first anatomic location, the second anatomic location, and the third anatomic location [Sirois: Fig.2: inferior concha 252, superior concha 253, ear lobe 254, tragus 255; ¶ 0028: “In order to measure the bioelectric signal, the electrodes can be placed in contact with the subject's skin at any location within or near the ear. For example, in the ear canal 251, inferior concha 252, superior concha 253, ear lobe 254, tragus 255, etc., or around the ear 260.]
However, Sirois in view of Fischer and Xu does not expressly disclose:
are selected such that they correspond to at least two different nerves.
Katsnelson discloses:
are selected such that they correspond to at least two different nerves [Katsnelson: Fig.1: electrodes 106 at the cymba conchae and electrode 110 at the earlobe of right external ear 104; col.1, ll. 31-36: “The Vagus nerve includes a sensory “auricular” branch that innervates the external ear. The upper, smaller part of the external ear lying above the crus helicis of the external ear called the cymba conchae, it is innervated exclusively by this branch”; col. 1, ll. 54-56: “The earlobe is innervated by the greater auricular nerve, which is a composite nerve of cervical spinal nerves 2 and 3 and projects to the nucleus cuneatus in the brainstem”; Examiner: Electrode locations at the concha and at the ear lobe correspond to two different nerves and the greater auricular nerve.].
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to place the electrodes of Sirois in view of Fischer and Xu at the concha and at the ear lobe, two of the locations Sirois lists (¶ 0028), which Katsnelson shows are served by different nerves (col. 1, ll. 31-36 and 54-56), in order to “maximize the distance between measurement and reference electrode” as Sirois teaches (¶ 0110).
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sirois; Alain et al., US 20220276723 A1] in view of [Fischer; Russell J. et al., US 20070112277 A1], [Xu; Jiawei et al., US 20150005585 A1] and further in view of [Pridie; Steven William, US 20200184735 A1].
Regarding claim 13:
Sirois in view of Fischer and Xu discloses:
13. The system of claim 12.
However, Sirois in view of Fischer and Xu does not expressly disclose:
wherein the action comprises at least one of changing a field of view of the virtual reality headset or changing a mode of the virtual reality headset.
Pridie discloses:
wherein the action comprises at least one of changing a field of view of the virtual reality headset or changing a mode of the virtual reality headset [Pridie: ¶ 0060: “ The mode change may alternatively involve a gesture (e.g., a hand gesture), such as mimicking tapping an object, tapping a finger and thumb together, a snap, or simply making a hand gesture (e.g. two finger's raised) and moving a hand from left to right. It may be a voice command, looking in a certain direction within an AR/VR headset, or utilizing an in-AR or in-VR menu system to select a mode change. Numerous activities could trigger a mode change, but regardless a mode change may be made by a user”].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have included the concept above of Pridie in the invention of Sirois in view of Fischer and Xu to yield the predictable result of changing a mode of the VR headset.
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 1-6 and 9-15 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1--11 of U.S. Patent No. 12,008,163. As apparent from the claim comparison table below, although the claims at issue are not identical, they are not patentably distinct from each other because the pending claims would have been obvious over the patented claims, as shown in the claim comparison table below. The only difference between the pending independent claims and the the patent claims are:
The pending claims omit the gestural sensor and movement-data input required by the patent claims 1 and 6. Omitting the limitations makes the pending claims broader; the pending claims determine the gesture from the electrophysiologic comparison alone, which is a subset of the determination the patented claims already perform – “based on (i) a comparison … and (ii) the movement data.” A later, broader claim that drops a limitation of an earlier patented claim not patentably distinct from it.
“Removing the common-mode signals” versus determining “based on … the common mode signal.” Both claims detect the common-mode signal via the third electrode and use it in the gesture determination; removing the common-mode is the conventional, art-recognized use of a common-mode signal in biopotential measurements, and is therefore an obvious variant conferring no patentable distinction.
Generic versus specific anatomic locations. Independent claims 1 and 9 recite generic first, second, third anatomic locations, which read on, and are rendered obvious by, the patented species (concha, tragus and triangular fossa). Dependent claims 6 and 15 then recite that very species, which is expressly present in patented claims 1 and 6.
App. No. 19/210,010
Patent No. US 12,008,163 B1
1. (Currently Amended) An earbud comprising:
a first electrode positioned on the earbud to physically contact a first anatomic location of an ear of a user when the earbud is worn by the user, the first electrode configured to detect a first electrophysiologic signal exhibited by the user;
a second electrode positioned on the earbud to physically contact a second anatomic location of the ear when the earbud is worn by the user,
the second electrode configured to detect a baseline electrophysiologic signal exhibited by the user;
a third electrode positioned on the earbud to physically contact a third anatomic location of the ear when the earbud is worn by the user,
the third electrode configured to identify common-mode signals across the first electrode and the second electrode;
and a controller coupled to the first electrode, the second electrode, and the third electrode,
the controller programmed to:
receive the first electrophysiologic signal, the baseline electrophysiologic signal, and the common-mode signals,
determine a gesture being performed by the user by comparing the first electrophysiologic signal to the baseline electrophysiologic signal and removing the common-mode signals identified by the third electrode,
and transmit the determined gesture to an external device for control thereof.
2. The earbud of claim 1,
wherein the first electrophysiologic
3. The earbud of claim 1,
wherein the first electrode, the second electrode, and the third electrode comprise a size from about 5 mm to about 6 mm.
4. The earbud of claim 1,
wherein the external device comprises a virtual reality headset.
5. The earbud of claim 1,
wherein the first electrode, the second electrode, and the third electrode comprise at least one of an elastomer, silicone, a metal, a ceramic, a carbon nanotube material, composites thereof, or combinations thereof.
6. The earbud of claim 1,
wherein the first anatomic location comprises a concha, the second anatomic location comprises a tragus, and the third anatomic location comprises a triangular fossa.
9. (Currently Amended) A system comprising:
an earbud comprising:
a first electrode positioned on the earbud to physically contact a first anatomic location of an ear of a user when the earbud is worn by the user, the first electrode configured to detect a first electrophysiologic signal exhibited by the user,
a second electrode positioned on the earbud to physically contact a second anatomic location of the ear when the earbud is worn by the user, the second electrode configured to detect a baseline electrophysiologic signal exhibited by the user,
a third electrode positioned on the earbud to physically contact a third anatomic location of the ear when the earbud is worn by the user, the third electrode configured to identify common- mode signals across the first electrode and the second electrode, and
a controller coupled to the first electrode, the second electrode, and the third electrode, the controller programmed to:
receive the first electrophysiologic signal, the baseline electrophysiologic signal, and the common-mode signals, the baseline electrophysiologic signal, and the common-mode signals, and determine a gesture being performed by the user by comparing the first electrophysiologic signal to the baseline electrophysiologic signal and removing the common-mode signals identified by the third electrode; and
an external device communicably coupled to the earbud, the external device programmed to:
receive the determined gesture from the controller of the earbud, and perform an action in response to the determined gesture.
10. The system of claim 9,
wherein the first signal and the baseline electrophysiologic signal comprise one or more of an of electrocardiogram (ECG), an electroencephalogram (EEG), or an electromyography (EMG).
11. The system of claim 9,
wherein the first electrode, the second electrode, and the third electrode comprise a size from about 5 mm to about 6 mm.
12. The system of claim 9,
wherein the external device comprises a virtual reality headset.
13. The system of claim 12,
wherein the action comprises at least one of changing a field of view of the virtual reality headset or changing a mode of the virtual reality headset.
14. The system of claim 9,
wherein the first electrode, the second electrode, and the third electrode comprise at least one of an elastomer, silicone, a metal, a ceramic, a carbon nanotube material, composites thereof, or combinations thereof.
15. The system of claim 9,
wherein the first anatomic location comprises a concha, the second anatomic location comprises a tragus, and the third anatomic location comprises a triangular fossa.
1. An earbud comprising:
a gestural sensor configured to detect movement data indicative of a gesture being performed by a user;
a first electrode positioned to physically contact a concha of an ear of the user when the earbud is worn by the user;
a second electrode positioned to physically contact a tragus of the ear when the earbud is worn by the user;
a third electrode positioned to physically contact a triangular fossa of the ear when the earbud is worn by the user;
and a controller coupled to the gestural sensor,
the first electrode, the second electrode, and the third electrode,
the controller programmed to:
receive an electrophysiologic measurement from each of the first electrode, the second electrode, and the third electrode, wherein a first electrophysiological measurement from the first electrode corresponds to an electrophysiological signal indicative of the
gesture being performed by the user, a second electrophysiological measurement from the second electrode corresponds to a baseline electrophysiological signal, and a third electrophysiological measurement from the third electrode corresponds to a common mode signal, determine the gesture being performed by the user based on (i) a comparison of the electrophysiological signal indicative of the gesture to the baseline electrophysiological signal and the common mode signal and (ii) the movement data from the gestural sensor,
and transmit the determined gesture to an external device for control thereof.
2. The earbud of claim 1,
wherein the electrophysiologic measurements are selected from the group consisting of, electrocardiogram (ECG), an electroencephalogram (EEG), or an electromyography (EMG).
3. The earbud of claim 1,
wherein each of the first electrode, the second electrode, and the third electrode comprise a size from about 5 mm to about 6 mm.
4. The earbud of claim 1,
wherein the external device comprises a virtual reality headset.
5. The earbud of claim 1,
wherein each of the first electrode, the second electrode, and the third electrode comprise at least one of an elastomer, silicone, a metal, a ceramic, a carbon nanotube material, composites thereof, or combinations thereof.
(These claim features have been incorporated into claim 1)
6. A system comprising:
an earbud comprising:
a gestural sensor configured to detect movement data indicative of a gesture being performed by a user,
a first electrode positioned to physically contact a concha of an ear of a user when the earbud is worn by the user,
a second electrode positioned to physically contact a tragus of the ear when the earbud is worn by the user,
a third electrode positioned to physically contact a triangular fossa of the ear when the earbud is worn by the user, and
a controller coupled to the gestural sensor,
the first electrode, the second electrode, and the third electrode, the controller programmed to:
receive an electrophysiologic measurement from each of the first electrode, the second electrode, and the third electrode, wherein a first electrophysiological measurement from the first electrode corresponds to an electrophysiological signal indicative of the gesture being performed by the user, a second electrophysiological measurement from the second electrode corresponds to a baseline electrophysiological signal, and a third electrophysiological measurement from the third electrode corresponds to a common mode signal, and
determine the gesture being performed by the user based on (i) a comparison of the electrophysiological signal indicative of the gesture to the baseline electrophysiological signal and the common mode signal and (ii) the movement data from the gestural sensor;
and an external device communicably coupled to the earbud, the external device programmed to:
receive the determined gesture from the controller of the earbud, and perform an action in response to the determined gesture.
7. The system of claim 6,
wherein the electrophysiologic measurements are selected from the group consisting of, electrocardiogram (ECG), an electroencephalogram (EEG), or an electromyography (EMG).
8. The system of claim 6,
wherein each of the first electrode, the second electrode, and the third electrode comprise a size from about 5 mm to about 6 mm.
9. The system of claim 6,
wherein the external device comprises a virtual reality headset.
10. The system of claim 9,
wherein the action comprises at least one of changing a field of view of the virtual reality headset or changing a mode of the virtual reality headset.
11. The system of claim 6,
wherein each of the first electrode, the second electrode, and the third electrode comprise at least one of an elastomer, silicone, a metal, a ceramic, a carbon nanotube material, composites thereof, or combinations thereof.
(These claim features have been incorporated into claim 6)
Claim comparison table 1
Accordingly, for at least the reasons above, pending claims 1-6 and 9-15 would have been obvious over patented claims 1-11 and are rejected under the doctrine of nonstatutory double patenting (MPEP § 804).
Inquiry
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Koosha Sharifi-Tafreshi whose telephone number is (571)270-5897. The examiner can normally be reached Mon - Fri 8AM to 5PM EST.
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, Nitin Patel can be reached at (571) 272-7677. 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.
/KOOSHA SHARIFI-TAFRESHI/ Primary Examiner, Art Unit 2628
