Ex Parte De Vries et al

Patent Trial and Appeal BoardJul 25, 2016

12429783 (P.T.A.B. Jul. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/429,783 0412412009 86107 7590 07/27/2016 Vista IP Law Group, LLP (GN Resound) 2160 Lundy Avenue Suite 230 San Jose, CA 95131 FIRST NAMED INVENTOR Aalbert De Vries 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 ATTORNEY DOCKET NO. CONFIRMATION NO. GNRP1669US 1716 EXAMINER SITIRICHE, LUIS A ART UNIT PAPER NUMBER 2122 NOTIFICATION DATE DELIVERY MODE 07/27/2016 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): docketing@viplawgroup.com ev@viplawgroup.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte AALBERT De VRIES, SVANTE STEN JOHAN STADLER, ARNE LEIJON, TJEERD MAARTEN HEIN DIJKSTRA, and ALEXANDER YPMA Appeal2015-002534 Application 12/429,783 Technology Center 2100 Before ST. JOHN COURTENAY III, KAMRAN JIVANI, and SCOTT B. HOWARD, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1-37 and 39--42. Claims 38 and 43 are cancelled. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We reverse. Invention The invention on appeal relates to method of establishing a hearing ability model for a person and a system for establishing a model of the hearing ability for a person. (Spec. 1 ). Appeal2015-002534 Application 12/429,783 Illustrative Claims j and 24 Claim 1. A method of establishing an individual hearing ability model for a person using a representation of a distribution of hearing ability for a population of individuals, the method comprising: obtaining a probabilistic hearing ability model based on the representation of the distribution of the hearing ability for the population of individuals; obtaining information regarding the person's response to a stimulus of a hearing evaluation event; and updating, using a processor, the probabilistic hearing ability model to establish the individual hearing ability model for the person using the information regarding the person's response to the stimulus of the hearing evaluation event, [L 1] wherein the probabilistic hearing ability model comprises a continuous function. Claim 24. A method of establishing an individual hearing ability model for a person using a representation of a distribution of hearing ability for a population of individuals, the method comprising: obtaining a probabilistic hearing ability model based on the representation of the distribution of the hearing ability for the population of individuals; obtaining information regarding the person's response to a stimulus of a hearing evaluation event; and [L2] updating, using a processor, the probabilistic hearing ability model to establish the individual hearing ability model for the person using the information regarding the person's response to the stimulus of the hearing evaluation event; 2 Appeal2015-002534 Application 12/429,783 [L3] wherein the individual hearing ability model for the person comprises an audiogram formed at least in part by an expected value of the updated probabilistic hearing ability model. (Emphasis added regarding the contested limitations, labeled as L 1, L2, and L3). Rejections A. Claims 24, 25, 29, and 30 are rejected under 35 U.S.C. Â§ 102(b) as being anticipated by Ozdamar et al., Classification of audiograms by sequential testing using a dynamic Bayesian procedure, J. Acoust. Soc. Am. 88(5), 2171-79 (pub. Nov. 1990). B. Claims 1-9, 12, 18-23, 28, 33-35, 39, and 40 are rejected under 35 U.S.C. Â§ 103(a) over the combined teachings of Ozdamar and Huang et al. (US 5,937,384; pub. Aug. 10, 1999). C. Claims 10, 11, and 13-17 are rejected under 35 U.S.C. Â§ 103(a) as over the combined teachings of Ozdamar, Huang, and John et al. (US 6,602,202 B2; pub. Aug. 5, 2003). D. Claims 26 and 31 are rejected under 35 U.S.C. Â§ 103(a) over the combined teachings of Ozdamar and Seefeldt (US 2010/017 4540 Al; pub. July 8, 2010). E. Claims 36 and 41 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combined teachings of Ozdamar, Huang, and Seefeldt. F. Claims 27 and 32 are rejected under 35 U.S.C. Â§ 103(a) over the combined teachings of Ozdamar and Napoletani et al. (US 7,424,463 Bl; pub. Sept. 9, 2008). 3 Appeal2015-002534 Application 12/429,783 G. Claims 37 and 42 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combined teachings of Ozdamar, Huang, and Napoletani. ANALYSIS Anticipation Rejection A of claims 24, 25, 29, and 30 Issue: Under Â§ 102(b ), did the Examiner err in finding Ozdamar expressly or inherently discloses the contested steps of: "[L2] updating, using a processor, the probabilistic hearing ability model to establish the individual hearing ability model for the person using the information regarding the person's response to the stimulus of the hearing evaluation event; [and L3] wherein the individual hearing ability model for the person comprises an audiogram formed at least in part by an expected value of the updated probabilistic hearing ability model," within the meaning of independent claim 24? (See also the corresponding functions recited using identical language in independent claim 29). The Examiner finds Ozdamar discloses "an audiogram formed at least in part by an expected value of the updated probabilistic hearing ability model," when it selects an audiogram based on the "Probability of Task Orientation" (PTO) value. (Final Act. 3 (citing Ozdamar 2176, Â§III Results)). 4 Appeal2015-002534 Application 12/429,783 Appellants contend: [T]he PTO value cannot be analogized as the claimed "expected value of the updated probabilistic hearing ability model". This is because according to page 217 4, right column (first full paragraph) of Ozdamar, "PTO is defined as the probability that there will be a headturn (response) during a trial". Thus, PTO is a probability that there will be a response during a trial, and it is not any expected value of any updated probabilistic hearing ability model. (App. Br. 11 (emphasis in original omitted, emphasis added)). The Examiner responds: Ozdamar teaches the PTO, which is the probability of response in a trial, in which certain values are expected to occur and correlation between the trial inputs. As expected, the accuracy is less as the probability reduces, therefore, this is interpreted as the "expected value". Moreover, in Table II, Ozdamar teaches the results of simulations with different patterns and the PTO. Examiner understands that these above mentioned teachings by Ozdamar are similar to the broadest reasonable interpretation of the limitations .... (Ans. 32 (emphasis in original omitted, emphasis added)). Our reviewing court guides "[a] claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference." Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987). Moreover, "[i]nherency ... may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient." In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (internal citations omitted). Applying this reasoning here, we find a preponderance of the evidence supports Appellants' arguments. As argued by Appellants (App. 5 Appeal2015-002534 Application 12/429,783 Br. 11) the "Probability of Task Orientation" (PTO) is defined in the Ozdamar reference (2174) as a probability of a headtum response by an infant during a trial. 1 We particularly focus our anticipation analysis on the Examiner's statement in the record: "[The] Examiner understands that these above mentioned teachings by Ozdamar are similar to the broadest reasonable interpretation of the limitations in independent claims 24 and 29." (Ans. 32 (emphasis in original omitted, emphasis added)). A finding by the Examiner that the cited portions of Ozdamar are merely "similar to" the claimed invention does not meet the showing required to establish express or inherent anticipation. See Verdegaal Bros., 814 F .2d at 631. To the extent a "similar" feature found in the Ozdamar reference may suggest the contested claim limitations L2 and L3, we note this is a question of obviousness, not anticipation. Nor has the Examiner presented any evidence the PTO described in Ozdamar (217 4) is inherently "an expected value of the updated probabilistic hearing ability model," within the meaning of independent claim 24 (emphasis added). 2 We additionally find the Examiner's mapping is unclear, regarding exactly what specific features in Ozdamar correspond to the claimed "updated probabilistic hearing ability model" and the "expected value," 1 See Ozdamar (2174): "The PTO ["Probability of Task Orientation"] is defined as the probability that there will be a headtum (response) during a trial. This PTO simulates the basic uncertainty of infant responses when the infant is under less than complete stimulus control. The PTO is modeled as a constant within a test." 2 We construe an expected value of a random variable as the long-run average value of repetitions of the experiment it represents. 6 Appeal2015-002534 Application 12/429,783 respectively. (Final Act. 3). Because the Examiner has not construed and mapped limitations L2 and L3 to the corresponding features in Ozdamar with particularity, we find the Examiner has not shown by a preponderance of the evidence that Ozdamar anticipates claim 24. Independent system claim 29 recites contested limitations L2 and L3 using identical language. Therefore, for the aforementioned reasons, we also reverse the Examiner's anticipation rejection of independent claim 29. For the same reasons, we also reverse associated dependent claims 25 and 30 (also rejected under anticipation rejection A), which depend upon independent claims 24 and 29, respectively. Rejection B under Â§103 of claims 1-9, 12, 18-23, 28, 33-35, 39, and 40 Issue: UnderÂ§ 103, did the Examiner err by finding the cited combination of Ozdamar and Huang would have taught or suggested contested limitation L 1, "wherein the probabilistic hearing ability model comprises a continuous function," within the meaning of independent claim 1? The Examiner finds Huang teaches contested limitation L 1 by describing "a computer speech recognition system that utilizes continuous hidden Markov models." (Final. Act. 6 (citing Huang col. 1, 11. 5-9 and col. 2, 11. 9-25)). Appellants contend "the continuous model in Huang is not any probabilistic hearing ability model, nor is it any continuous function for a probabilistic hearing ability model that is updated to establish an individual hearing ability model for a person." (App. Br. 13-14). 7 Appeal2015-002534 Application 12/429,783 We are persuaded by Appellants' argument. (Id.). Huang makes no teaching or suggestion of any "probabilistic hearing ability model," as alleged by the Examiner. (Final Act. 6). Instead of a hearing model, Huang (col. 2, 11. 28-31) describes the use of a Hidden Markov Model (HMM), which is used for speech recognition: "The present invention pertains to a speech recognition system which improves the modeling of the speech signal to continuous density HMM corresponding to a linguistic expression." Therefore, we find a preponderance of the evidence supports Appellants' contention (App. Br. 13-14) there is no teaching or suggestion in Ozdamar, or Huang, of "wherein the probabilistic hearing ability model comprises a continuous function," as recited in independent claims 1, 12, 18, 19, 34, and 39, using identical or commensurate language. Accordingly, we reverse the Examiner'sÂ§ 103 rejection B of independent claims 1, 12, 18, 19, 34, and 39, over the combination of Ozdamar and Huang. For the same reasons, we also reverse the Examiner's rejection B of the corresponding associated dependent claims. Regarding the Â§ 103-rejected dependent claims that depend from Â§ 102- rejected base claims 24 and 29, the Examiner has not shown how the additional cited references overcome the aforementioned deficiencies regarding Ozdamer for dependent claims 28 and 33 (rejection B), 26 and 31 (rejection D), and 27 and 32 (rejection F), Regarding the remaining dependent claims n~~iected under Â§ 103 rejections C, E, and G, the Examiner has not shown how the additional cited references overcome the afi)rementioned deficiencies regarding the base combination of Ozdamar and Huang, as discussed above regarding 8 Appeal2015-002534 Application 12/429,783 rejections A and R Accordingly~ we reverseÂ§ 103 rejections C, E, and G, of all remaining dependent claims on appeal. Conclusion For at least the aforementioned reasons, on this record, we are persuaded by Appellants' arguments the Examiner erred regarding rejections A---G of all claims before us on appeal. DECISION We reverse the Examiner's rejection of claims 24, 25, 29, and 30 under 35 U.S.C. Â§ 102(b). We reverse the Examiner's rejection of claims 1-23, 26-28, 31-37, and 39--42 under 35 U.S.C. Â§ 103(a). REVERSED 9