Ex Parte Boretzki

Patent Trial and Appeal BoardOct 31, 2017

12742527 (P.T.A.B. Oct. 31, 2017)

United States Patent and Trademark Office UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O.Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/742,527 05/12/2010 Michael Boretzki TSW-46775 6550 86378 7590 11/02/2017 Pearne Rr frnrHnn T T P EXAMINER 1801 East 9th Street UHLIR, CHRISTOPHER J Suite 1200 Cleveland, OH 44114-3108 ART UNIT PAPER NUMBER 2837 NOTIFICATION DATE DELIVERY MODE 11/02/2017 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): patdocket@peame.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL BORETZKI Appeal 2017-000182 Application 12/742,5271 Technology Center 2800 Before JEFFREY T. SMITH, MICHAEL P. COLAIANNI, and MICHAEL G. McMANUS, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from the non-final rejection2 of claims 1—3, 6, 7, 9-11, 18, 20 and 26—28. We have jurisdiction under 35 U.S.C. §6. Appellant’s invention relates generally to a method for adjusting a hearing system according to preferences of the hearing aid wearer. (Spec. 1 2). Claim 1 is illustrative of the subject matter on appeal: 1 According to Appellant, the real party in interest is Sonova AG. See Appeal Br. 2. 2 Non-final rejection dated August 27, 2015. Appeal 2017-000182 Application 12/742,527 1. Method for adjusting a hearing system according to preferences of a hearing aid wearer of said hearing system, said hearing system comprising at least one hearing aid device for improving the hearing perception of said hearing aid wearer and for being worn in or adjacent to an ear of said hearing aid wearer, the method comprising: playing an audio sequence to said hearing aid wearer, wherein said audio sequence comprises a first sound object representative of a first real-life sound source and a second sound object representative of a second real-life sound source; providing said hearing aid wearer, synchronously with said playing the audio sequence, with a visualization of a scene to which said audio sequence belongs; receiving an input from said hearing aid wearer in response to said step of playing the audio sequence to said hearing aid wearer, wherein said input from said hearing aid wearer comprises a selection of a sound source occurring in said visualization; automatically selecting one or more audio processing parameters of said hearing system in dependence of said input from said hearing aid wearer; offering at least one audio processing parameter, of the one or more audio processing parameters selected, for adjustment; and adjusting said at least one audio processing parameter of said at least one hearing aid device in dependence of a further input. Claims Appendix to App. Br. Appellant (see App. Br., generally) request review of the following rejections under 35 U.S.C. § 103(a): I. Claims 1—3, 6, 7, 18, and 21 rejected as unpatentable over the combined teachings of Schwob (US 2007/0217636 Al, 2 Appeal 2017-000182 Application 12/742,527 published Sept. 20, 2007) and Bassett et al. (US 8,341,662 Bl, issued Dec. 25, 2012) (“Bassett”). II. Claims 9-11 rejected as unpatentable over the combined teachings of Schwob, Porwal et al. (US 2008/0063215 Al, published Mar. 13, 2008) (“Porwal”) and Bassett. III. Claims 26 and 28 rejected as unpatentable over the combined teachings of Schwob, Bassett, and Terlizzi et al. (US 2008/0165988 Al, published July 10, 2008). (“Terlizzi”). The complete statement of the rejections on appeal appears in the Final Office Action. (Final Act. 2—12). OPINION Rejections I and III3 After consideration of the evidence in this appeal record in light of the respective positions advanced by the Examiner and Appellant, we determine that Appellant has identified reversible error in the Examiner’s determination that the subject matter recited in claims 1—3, 6, 7, 18, 21, 26, and 28 would have been obvious to one of ordinary skill in the art within the meaning of 35 U.S.C. § 103(a). Accordingly, we reverse Rejections I and III. The Examiner found Schwob discloses a method for adjusting a hearing system according to preferences of a hearing aid wearer comprising 3 Our discussion applies to independent claims 1 and 18. 3 Appeal 2017-000182 Application 12/742,527 simultaneously playing an audio sequence while visually displaying a scene to which the audio sequence belongs. (Final Act. 3; Schwob Tflf 11, 19 and 52). According to the Examiner, Schwob includes different groups of hearing situations representing sounds that the wearer would experience during normal everyday use of the hearing aid. An example of said groups is disclosed to be music. (Ans. 3; Schwob Tflf 20-40). The Examiner determined Schwob failed to disclose that the input provided by the hearing aid wearer was the selection of a sound source occurring in the visualization scene. (Final Act. 3). The Examiner found Bassett describes user customization of events that are selectively displayed with corresponding audio. (Final Act. 3; Bassett col. 6,1. 65—col. 7,1. 2). According to the Examiner: Given the teachings of Bassett et al., it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the method disclosed in Schwob with prov[id]ing the input to be received by the hearing aid wearer such that the input comprises a selection of a sound source occurring in the visualization. (Final Act. 3^4). The Examiner further stated: Both Schwob and Bassett et al. describe situations in which audio parameters of a visualization presented to a user can be adjusted based on the individual hearing preferences. The visualizations are further shown in Schwob and Bassett et al. to be related to entertainment, and fall within the scope of a hearing situation that a hearing-aid wearer would experience during normal everyday use. The teachings of Bassett et al. therefore are related to and properly combined with the disclosure of Schwob. Such a combination properly describes Appellant's invention as required by the claims. (Ans.4). 4 Appeal 2017-000182 Application 12/742,527 Appellant argues one of ordinary skill in the art would have no motivation to combine an entertainment system of Bassett with the medical procedure of Schwob and the combination would not have yielded the claimed subject matter. Specifically Appellant argues, Schwob is directed to fitting of a hearing aid and Bassett is directed to improvements in audio/visual entertainment systems. (App. Br. 12—13). Appellant argues the claims are directed to selecting audio sources from a visualization as part of an adjustment or fitting process while the combination of Schwob and Bassett would only result in a hearing aid in which a user could selectively choose audio sources when using the hearing aid which is not is not what is claimed. (App. Br. 13—14). We agree with Appellant that the Examiner’s rejection of the independent claims 1 and 18 is not well-founded. The Examiner sought to add the teachings of Bassett to Schwob to teach selecting a sound source in a visualization and adjusting a parameter of the hearing aid based on the selection (so as to properly fit/program the hearing aid for the scenario in the visualization). (Final Act. 3—4). Bassett discloses responsive to user input, selected video streams and the selected audio streams are assigned to respective portions of video and audio output devices. (Col. 5,11. 39-60). The Examiner has not adequately explained how a user selecting the combination of audio and video streams to create an event would have been suitable for adjusting a parameter of a hearing aid. That is, the Examiner has not adequately explained how the selecting the combination of audio and video streams to create an event is related to the selecting portions from a video presentation to identify specific objects contained therein based on the sound so as to allow for adjusting a parameter of a hearing aid. 5 Appeal 2017-000182 Application 12/742,527 Rejection II4 The Examiner found Schwob describes an arrangement for adjusting a hearing system according to preferences of a hearing-impaired user of the hearing system. (Final Act. 7). The Examiner determined that Schwob failed to disclose the first and second storage units required by the claimed invention. To address this difference the Examiner cited Porwal. (Final Act. 8). The Examiner also determined Schwob failed to disclose the user interface to allow an individual to select at least one of a sound source occurring in the visualization, one of the sound objects comprised in the audio sequence, or an instant in or a portion of the audio sequence. (Final Act. 8—9). To address this difference the Examiner cited Bassett for describing: [A]n arrangement for adjusting a hearing system where an input comprising a selection of a sound source (player) occurring in a visualization is received by a listener for providing information (column 6 line 65 through column 7 line 2) relating to different audio processing parameters (column 8 lines 35—38). (Final Act. 9). The Examiner determined it would have been obvious to modify the arrangement of Schwob/Porwal to provide the user interface to allow an individual to select the sounds occurring within the visualization. (Final Act. 9). Appellant relies on the arguments presented above regarding the combination of Schwob and Bassett. (App. Br. 19-20). Specifically Appellant argues one of ordinary skill in the art would have no motivation to 4 Our discussion applies to independent claim 9. 6 Appeal 2017-000182 Application 12/742,527 combine an entertainment system of Bassett with the medical procedure of Schwob and the combination would not have yielded the claimed subject matter. The Examiner’s additional reliance on Porwal in rejecting independent claim 9 neither addresses nor cures the deficiency noted above in connection with the Rejection I. Accordingly, we do not sustain Rejection II for the reasons given in connection with Rejection I. For the reasons provided by Appellant and given above, the Examiner has not established that the relied-upon disclosures of Schwob, Bassett and/or Porwal are sufficient to support obviousness of independent claims 1, 9, and 18. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art”). Accordingly, we do not sustain the Examiner’s decision to reject claims 1—3, 6, 7, 9-11, 18, 20 and 26—28 for the reasons presented by Appellant and given above. ORDER The rejections of claims 1—3, 6, 7, 9—11, 18, 20 and 26—28 under 35 U.S.C. § 103(a) are reversed. REVERSED 7