Ex Parte Sapiejewski et alDownload PDFPatent Trial and Appeal BoardDec 22, 201714215629 (P.T.A.B. Dec. 22, 2017) Copy Citation 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. 14/215,629 03/17/2014 Roman Sapiejewski N-14-161-US 1079 71016 7590 Bose Corporation Patent Group Mountain Road, MS 3B1 Framingham, MA 01701 EXAMINER PRITCHARD, JASMINE L ART UNIT PAPER NUMBER 2655 NOTIFICATION DATE DELIVERY MODE 12/27/2017 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): docket @ bose. com designs @ bose. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROMAN SAPIEJEWSKI, MARK BERGERON, and MIHIR D. SHETYE Appeal 2017-006332 Application 14/215,6291 Technology Center 2600 Before CARLA M. KRIVAK, HUNG H. BUI, and JON M. JURGOVAN, Administrative Patent Judges. JURGOVAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek review under 35 U.S.C. § 134(a) from a Final Rejection of claims 1—25, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.2 1 Appellants identify Bose Corporation as the real party in interest. (Br. 1.) 2 Our Decision refers to the Specification (“Spec.”) filed March 17, 2014, the Final Office Action (“Final Act.”) mailed May 19, 2016, the Appeal Brief (“Br.”) filed October 18, 2016, and the Examiner’s Answer (“Ans.”) mailed January 13, 2017. Appeal 2017-006332 Application 14/215,629 CLAIMED INVENTION The claims are directed to “headsets with linearized pressure equalization ports characterized by an acoustic impedance with a very low resistive component.” (Spec. 12.) In one example, Appellants’ headset includes at least one ear cup having front and rear cavities separated by a driver, the cup including a pressure equalization port coupling the front cavity to space outside the cup. (Abstract.) The pressure equalization port is “significantly longer than it is wide, providing a principally reactive acoustic impedance, such that the pressure response of the front cavity including the port to signals input via the driver may be effectively linear over a wide range of pressure levels within the front cavity.” (Abstract.) Claims 1,11, and 19 are independent. Claims 1 and 19, reproduced below, are illustrative of the claimed subject matter: 1. A headset comprising, at least one ear cup having front and rear cavities separated by a driver, the cup comprising a pressure equalization port coupling the front cavity to space outside the cup, the pressure equalization port having an effective cross- sectional area greater than 2 mm2 and being significantly longer than it is wide, providing a principally reactive acoustic impedance, such that the pressure response of the front cavity including the port is effectively linear over a wide range of pressure levels within the front cavity. 19. An apparatus comprising: a first ear cup shell of a headphone, a second ear cup shell of the headphone, an electroacoustic driver disposed between the first and 2 Appeal 2017-006332 Application 14/215,629 second ear cup shells, such that the first ear cup shell and a first face of the driver define a front cavity, and the second ear cup shell and a second face of the driver define a rear cavity, and a metal tube at least 15 mm in length and having an internal bore with an effective cross-sectional area of at least 1.75 mm2, providing a principally reactive acoustic impedance, the metal tube seated in the first ear cup shell and coupling the front cavity to space around the apparatus. (Br. 10—12 (Claims App’x).) REJECTIONS & REFERENCES (1) Claims 1, 4, 5, and 10 stand rejected under 35 U.S.C. § 102(a)(2) based on Sibbald et al. (US 2010/0080400 Al, published Apr. 1, 2010, “Sibbald”). (Final Act. 14—16.) (2) Claims 2 and 9 stand rejected under 35 U.S.C. § 103 as being unpatentable over Sibbald. (Final Act. 17—18.) (3) Claims 3, 6—8 and 19-25 stand rejected under 35 U.S.C. § 103 as being unpatentable over Sibbald and Donaldson et al. (US 2009/0161885 Al, published June 25, 2009, “Donaldson”). (Final Act. 18—24.) (4) Claims 11, 13, and 14 stand rejected under 35 U.S.C. § 103 as being unpatentable over Howes et al. (US 2013/0343593 Al, published Dec. 26, 2013, “Howes”) and Gorike (US 4,160,135, issued July 3, 1979). (Final Act. 24—32.) (5) Claim 12 stands rejected under 35 U.S.C. § 103 as being unpatentable over Howes, Gorike, and Sibbald. (Final Act. 32—33.) (6) Claims 15—18 stand rejected under 35 U.S.C. § 103 as being unpatentable over Howes, Gorike, and Donaldson. (Final Act. 33—36.) 3 Appeal 2017-006332 Application 14/215,629 ANALYSIS Claims 1, 3—8, and 10 Claim 1 recites, inter alia: the cup comprising a pressure equalization port coupling the front cavity to space outside the cup, the pressure equalization port having an effective cross- sectional area greater than 2 mm2 and being significantly longer than it is wide, providing a principally reactive acoustic impedance, such that the pressure response of the front cavity including the port is effectively linear over a wide range of pressure levels within the front cavity. (Br. 10 (Claims App’x).) The Examiner finds that Sibbald discloses all the structural limitations of claim 1. Particularly, the Examiner finds Sibbald’s ear-worn speaker carrying device (ESD), shown in Figure 2, teaches a headset comprising an ear cup having a front cavity (frontal volume between ear and loudspeaker 30) and a rear cavity (52), as recited in claim 1. (Final Act. 14—15 (citing Sibbald Tflf 30, 45 46, Figs. 2—6).) The Examiner further finds Sibbald’s cup includes an acoustic leakage channel—composed of Sibbald’s frontal conduit 40 and front emission port 42—that forms a pressure equalization port coupling the front cavity to space outside the cup, as recited in claim 1. (Final Act. 15 (citing Sibbald Tflf 45, 94, 103—104, Fig. 2).) The Examiner additionally finds Sibbald’s pressure equalization port has an effective cross- sectional area greater than 2 mm2 and is significantly longer than it is wide. (Final Act. 15 (citing Sibbald Tflf 74, 76—81, Abstract, Figs. 2 and 9—11).) The Examiner regards the limitations requiring “a principally reactive acoustic impedance, such that the pressure response of the front cavity including the port is effectively linear over a wide range of pressure levels 4 Appeal 2017-006332 Application 14/215,629 within the front cavity” to be functional limitations, and finds that Sibbald’s pressure equalization port (leakage channel with conduit 40 and front emission port 42) is capable of performing the claimed functions. (Final Act. 15; Ans. 25-27.) For example, Bo’s Figure 2 is reproduced below with annotations to indicate certain features. Sibbald’s Figure 2 shows a cross-sectional view of an ear-worn speaker carrying device (ESD) in a supra-aural headphone format. (Sibbald H 17,45.) Appellants dispute the Examiner’s finding that Sibbald’s acoustic leakage channel provides a “principally reactive acoustic impedance,” as required by claim 1. (Br. 3 4.) Appellants assert “Sibbald is silent about the impedance of the channel” or “about any port ‘providing a principally reactive acoustic impedance’.” (Br. 3.) Therefore, Appellants argue Sibbald does not teach a pressure equalization port, as claimed. (Br. 3 4.) Appellants also argue “Sibbald is silent about ‘the pressure response of the front cavity including the port’ being ‘effectively linear over a wide range of 5 Appeal 2017-006332 Application 14/215,629 pressure levels within the front cavityas Sibbald does not measure “the impact its proposed design will have on linearity” by “applying differing input signal levels and measuring the resulting pressure at a point of interest within the headset” as does Appellants’ invention. (Br. 3^4 (citing Spec. 1120,38, Figs. 13-14).) We are not persuaded the Examiner erred in finding that Sibbald anticipates claim 1. In particular, we are not persuaded the Examiner erred in finding that Sibbald’s pressure equalization port (leakage channel including conduit 40 and front emission port 42) provides a principally reactive acoustic impedance and a pressure response that is effectively linear over a wide range of pressure levels within the front cavity. Particularly, the Examiner finds an effectively linear pressure response and a principally reactive acoustic impedance “is the result of the pressure equalization port having an effective cross-sectional area greater than 2 mm2 and being significantly longer than it is wide,” as evidenced by Appellants’ Specification. (Ans. 25—27 (citing Spec. 123, Fig. 10); see also Final Act. 4—5.) The Examiner then finds Sibbald’s pressure equalization port/leakage channel is structurally equivalent to the claimed pressure equalization port because Sibbald’s port has an effective cross-sectional area greater than 2 mm2 and is significantly longer than it is wide. (Ans. 25—26 (citing Sibbald Fig. 2); Final Act. 15 (citing Sibbald 176).) Appellants provide mere attorney argument, without evidence rebutting the Examiner’s findings that, based on Sibbald’s leakage channel dimensions (see Sibbald 176, Fig. 2), it is impossible for Sibbald’s leakage channel to provide a principally reactive acoustic impedance and an effectively linear pressure response over a wide range of pressure levels 6 Appeal 2017-006332 Application 14/215,629 within the front cavity. (See App. Br. 3 4.) Conversely, the Examiner’s explanation (based on similarity of structure) supports these findings. Appellants’ Specification indicates that the claimed dimensions of the pressure equalization port result in the claimed principally reactive acoustic impedance and the effectively linear pressure response, by decreasing the attendant resistive component of the port’s impedance. (See Spec. ]Hf 19, 21, 23.) As the Examiner finds, Sibbald teaches this same port structure that performs the same function. (Ans. 25—27.) In summary, and based on the record presented, we are not persuaded the Examiner erred in rejecting independent claim 1 as anticipated by Sibbald and therefore, sustain the Examiner’s rejection. No separate arguments are presented for dependent claims 4, 5, and 10. (Br. 3.) Accordingly, for the reasons stated with respect to independent claim 1, we sustain the rejection of claims 4, 5, and 10. See 37 C.F.R. § 41.37(c)(l)(iv). Appellants argue dependent claims 3 and 6—8 based on their dependency from claim 1, and additionally argue Donaldson does not cure the alleged deficiencies of Sibbald. (Br. 5.) Because we find Sibbald is not deficient, Donaldson is not needed to cover any deficiency, and therefore we sustain the rejection of dependent claims 3 and 6—8. Claim 2 With respect to dependent claim 2 (reciting “the range of pressure levels within the front cavity comprise sound pressure levels between about 120 dB SPL and 150 dB SPL”), Appellants argue Sibbald does not disclose a driver producing a “range of sound pressure levels within the front cavity 7 Appeal 2017-006332 Application 14/215,629 range from 120 dB SPL to 150 db SPL,” and does not teach “maintain[ing] a linear output up to those sound pressure levels.” (Br. 4.) Appellants’ argument is not persuasive because Sibbald discloses a high-compliance driver, and Appellants have not rebutted the Examiner’s reasonable finding that “producing sound pressure levels between 120dB to 150 dB, within the front cavity of Sibbald’s headset, is no more than routine experimentation.” (Ans. 27—28 (citing Sibbald 175).) Additionally, as discussed supra with respect to claim 1, we agree with the Examiner Sibbald teaches the structure of claim 1, and this structure permits a pressure response that is effectively linear over a wide range of pressure levels within a front cavity. We additionally note claim 2 does not require the pressure equalization port to “maintain a linear output up to those sound pressure levels” as Appellants advocate (see Br. 4 (emphasis added)); rather, claim 2 (via claim 1) merely requires an “effectively linear” pressure response, and does not specify what would fall outside the claimed “effectively linear” requirement. Accordingly, Appellants’ arguments have not persuaded us of error in the Examiner’s rejection of claim 2. Thus, we sustain the Examiner’s rejection of claim 2. Claim 9 With respect to claim 9, the Examiner finds heat-staking is a well- known technique for “joining two or more parts where at least one of the parts is made out of plastic,” and “the use of the known technique of heat- staking parts for the Sibbald headset would have been obvious to those of ordinary skill in the art with the desire to connect parts as is typically done.” (Ans. 28—29; Final Act. 18 (citing Sibbald 145, Figs. 2—6).) 8 Appeal 2017-006332 Application 14/215,629 Appellants argue “[o]ther than conclusory statements that heat-staking is a ‘known technique, ’ the Office Action does not specifically point to any portion of the cited references that allegedly discloses these features, or provide any explanation of how any cited art anticipates or renders obvious” claim 19. (Br. 5.) We are not persuaded by Appellants’ arguments, which do not address the Examiner’s findings that heat-staking is common knowledge and well-known in the art, as evidenced by, e.g., U.S. Patent 8,670,586 B1 (issued March 11, 2014, to Boyle et al.). (Ans. 29.)3 Thus, we agree with the Examiner “the use of the known technique of heat-staking would have yielded [the] predictable results of adjoining two or more parts together” as claim 9 recites. (Final Act. 18.) Accordingly, Appellants’ arguments have not persuaded us of error in the Examiner’s rejection of claim 9. Thus, we sustain the Examiner’s rejection of claim 9. Claims 11—18 Independent claim 11 recites, inter alia: at least one ear cup having a front cavity and rear cavity with front cavity and rear cavity compliances respectively, a high compliance driver between the front and rear cavities with a driver compliance that is greater than the rear cavity compliance, the ear cup comprising a mass port and a resistive port connected to the rear cavity in parallel and a pressure equalization port connected to the front cavity, the pressure equalization port having an effective cross- sectional area greater than 1.75 mm2 and being significantly longer than it is wide, providing a principally reactive acoustic impedance, 3 See also the description of heat-staking at https://en.wikipedia.orAwiki/Staking (manufacturing). 9 Appeal 2017-006332 Application 14/215,629 such that the pressure response of the front cavity including the port to signals input via the driver is effectively linear over a wide range of pressure levels within the front cavity, and an active noise reduction system coupled to the driver. (Br. 11 (Claims App’x).) The Examiner finds Howes’ earphone comprises a front cavity (420) and rear cavity (422) inside a housing (102). (Final Act. 24 (citing Howes Figs. 3- 7).) The Examiner further finds Howes’ acoustic duct (704), bass port (518), tuning output port (532), and tuning port (514) teach a mass port and a resistive port connected to the rear cavity in parallel, as recited in claim 11. (Final Act. 24—25 (citing Howes Figs 5—8).) The Examiner also finds Howes’ secondary output opening (110) of the earphone’s housing (102) teaches a pressure equalization port connected to the front cavity, the pressure equalization port having an effective cross-sectional area greater than 1.75 mm2 and providing a principally reactive acoustic impedance, as required by claim 11. (Final Act. 25 (citing Howes Tflf 23—30, Figs 4—8).) The Examiner acknowledges Howes does not teach an ear cup as claimed, but relies on Gorike’s earphone with a circum-aural ear cushion for this feature. (Final Act. 25 (citing Gorike 3:10-11, 4:61—62, Figs, la and 6—7).) The Examiner further acknowledges Howes does not teach the claimed pressure equalization port being significantly longer than it is wide, but finds such port dimensions would be obtained by routine experimentation and optimization of Howes. (Final Act. 28—29; see also Ans. 30 (citing Howes 124).) Appellants argue Howes is silent regarding a pressure equalization port significantly longer than it is wide and providing a principally reactive 10 Appeal 2017-006332 Application 14/215,629 acoustic impedance, as claim 11 recites. (Br. 6.) We agree with Appellants Howes does not teach or suggest a pressure equalization port as claimed. Particularly, Howes’ secondary output opening 110 is just an opening for venting the ear canal to the external environment outside of the earphone, and this opening is not significantly longer than it is wide. (Br. 6; see Howes 23, 26.) Rather, Howes’ opening 110 appears to be wider than it is long. (See Howes Figures 3, 4, and 6C.) Thus, Howes does not teach or suggest a pressure equalization port significantly longer than it is wide for providing a principally reactive acoustic impedance, as required by claim 11. (Br. 6.) The Examiner also has not shown that the additional teachings of Gorike make up for the above-noted deficiencies of Howes. As the Examiner has not identified sufficient evidence to support the rejection of claim 11, we do not sustain the Examiner’s rejection of claim 11,4 We also do not sustain the Examiner’s rejection of dependent claims 4 In the event of any further prosecution, we suggest the Examiner consider the relevancy of Sibbald (instead of Howes) to claim 11 ’s limitation of “the pressure equalization port having an effective cross-sectional area greater than 1.75 mm2 and being significantly longer than it is wide, providing a principally reactive acoustic impedance.” As discussed supra with respect to claim 1, Sibbald teaches a “pressure equalization port having an effective cross-sectional area greater than 2 mm2 and being significantly longer than it is wide, providing a principally reactive acoustic impedance.” With respect to claim 12 (depending from claim 11), we note although the Examiner has in fact cited Sibbald against claim 12, the Examiner still relies on Howes for the limitations of base claim 11 incorporated into claim 12 (see Final Act. 32—33). However, as discussed supra with respect to claim 11, we do not agree with the Examiner that the skilled artisan would modify Howes to have a pressure equalization port significantly longer than it is wide, since Howes’ port (110) is configured to be wider than it is long. (See Howes Figures 3, 4, and 6C.) 11 Appeal 2017-006332 Application 14/215,629 12—18.5 Claims 19—25 Independent claim 19 recites, inter alia: a metal tube at least 15 mm in length and having an internal bore with an effective cross-sectional area of at least 1.75 mm2, providing a principally reactive acoustic impedance, the metal tube seated in the first ear cup shell and coupling the front cavity to space around the apparatus. (Br. 12 (Claims App’x).) The Examiner finds Sibbald’s conduit (40) teaches a tube seated in a first ear cup shell (34, 36), the tube having an internal bore with an effective cross-sectional area of at least 1.75 mm2 and providing a principally reactive acoustic impedance, as recited in claim 19. (Final Act. 19-20 (citing Sibbald H 45, 77, 81, 94, 103-104, Fig. 2-6, Abstract).) The Examiner acknowledges Sibbald does not teach “the tube is a metal tube at least 15 mm in length, wherein the metal tube is made of stainless steel,” but relies on Donaldson for teaching “a metal tube.” (Final Act. 20 (citing Donaldson || 49, 70, 72, Figs. 2—4).) The Examiner also takes Official Notice that “[i]t would require no more than ordinary skill and 5 In the event of any further prosecution, we suggest the Examiner consider rejecting independent claim 11 under 35 U.S.C. § 112(b), as being indefinite and incomplete because the claim is unclear as to: (1) the structure or arrangement that would achieve the claimed compliance relationship of “a driver compliance that is greater than the rear cavity compliance;” and (2) the metes and bounds of “significantly longer than it is wide.” Regarding issue (2), it is unclear from the claim, for example, what length-width relationship would produce a “significantly longer than it is wide” port, and it is also unclear what length-width configurations would fall outside the claimed “significantly longer than it is wide.” 12 Appeal 2017-006332 Application 14/215,629 common sense, to try a pressure equalization port comprising a tube of about 15 mm long within the scope of the Sibbald apparatus.” (Final Act. 21.) Appellants argue the Examiner’s Official Notice is improper because Sibbald is silent about a metal tube at least 15 mm in length providing a principally reactive acoustic impedance, as claimed. (Br. 5—6.) Rather, Sibbald merely teaches a 10 mm-long port, and is silent about length- diameter relationships that would produce a principally reactive port/tube as required by claim 19. (Br 6.) We agree with Appellants. The portions of Sibbald relied upon by the Examiner teach 10 mm-long tubes with various cross-sectional areas. (See Sibbald 176.) The Examiner has not shown, however, nor have we found, that Sibbald suggests a tube of at least 15 mm in length and having an internal bore with an effective cross-sectional area of at least 1.75 mm2, providing a principally reactive acoustic impedance, as recited in claim 19. Donaldson does not cure the deficiencies of Sibbald as Donaldson merely discloses a metallic earphone housing with a pipe-opening coupled to a user’s ear canal, and Donaldson does not disclose pipes at least 15 mm in length. (Br. 6; see Donaldson || 49, 70.) Further, the Examiner has not responded to Appellants’ arguments in the Answer. As the Examiner has not identified sufficient evidence to support the rejection of claim 19, we do not sustain the Examiner’s rejection of claim 19. We also do not sustain the Examiner’s rejection of dependent claims 20-25. DECISION The Examiner’s rejection of claims 1—10 is affirmed. 13 Appeal 2017-006332 Application 14/215,629 The Examiner’s rejection of claims 11—25 is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 14 Copy with citationCopy as parenthetical citation