Ex Parte Thieberger Ben-Haim et al

Patent Trial and Appeal BoardSep 23, 2014

12723594 (P.T.A.B. Sep. 23, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ANAT THIEBERGER BEN-HAIM, GIL THIEBERGER, TAL THIEBERGER, and SHAUL THIEBERGER ____________________ Appeal 2012-001719 Application 12/723,594 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, NEIL T. POWELL, and BEVERLY M. BUNTING, Administrative Patent Judges. BUNTING, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-001719 Application 12/723,594 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1– 3, 5, 7–11, and 13.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The claims are directed to a device for stimulating the development of language skills for infants. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A device for stimulating the development of phonetic categories by an infant, using infant-specific repetitive isolated phonemes, comprising: a memory element, a speaker, and a processor; the device configured to play, via the speaker, auditory pieces comprising infant-specific repetitive isolated phonemes in a voice similar to the voice of the infant's mother, in pitches that were not recorded by the infant's mother; wherein the device stimulates the development of phonetic categories by the infant by exposing the infant to the infant-specific auditory pieces, whereby an infant is usually more attentive to his/her mother voice than to other unfamiliar voices. REFERENCES The Examiner relies on the following prior art references in rejecting the claims on appeal: 1 The Examiner indicates in the Status of Claims section that claims 4, 6, 12, and 20 are canceled, and claims 14–19 are withdrawn. Ans. 3. The Grounds of Rejection section heading erroneously states “Claims 1-3, 5, 7 and 9-13 are rejected under 35 U.S.C. § 103(a)”; however, the ensuing discussion recognizes claim 12 is canceled. Id. at 4–5. Appeal 2012-001719 Application 12/723,594 3 Parsons Bennett US 2001/0039000 A1 US 2004/0067471 A1 Nov. 8, 2001 Apr. 8, 2004 Neurosmith “The Babbler,” http://www.epinions.com/review/ Neurosmith_The_Babbler/content_129101762180 (last visited March 2, 2009) (hereinafter “The Babbler”). REJECTIONS The following rejections are before us for review: Claims 1–3, 5, 7, 9–11, and 13 are rejected under 35 U.S.C. 103(a) as being unpatentable over Bennett and Parsons. Ans. 4. Claim 8 is rejected under 35 U.S.C. 103(a) as being unpatentable over Bennett, Parsons, and “The Babbler.” Ans. 5. OPINION Claims 1–3, 5, 7, 9–11 and 13 Appellants argue claims 1–3, 5, 7, 9–11, and 13 together as a group. We select claim 1 as representative, and claims 2–3, 5, 7, 9–11, and 13 stand or fall with representative claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). The Examiner finds that Bennett discloses a device for stimulating development of phonetic categories by an infant, having the required elements of claim 1, including a memory element, a speaker, and a processor configured to play infant-specific repetitive isolated phonemes. Ans. 4, (citing Bennett ¶¶ 49, 50, 57, and 90). Noting that Bennett does not expressly disclose “that the phonemes are recorded in the voice of a parent, specifically the mother of the infant or a voice ‘similar’ to that of the parent,” the Examiner relies on the disclosure in Parsons for this feature. In particular, Parsons describes an electronic reading tutor in which a parent (i.e., mother or father) or caregiver records the audio narration to be played Appeal 2012-001719 Application 12/723,594 4 to the infant. Ans. 4 (citing Parsons ¶¶ 67, 69, and 71). Based on Parsons’ teaching that a parent records the sounds, and the availability of a limited set of voices to be used in the recording, the Examiner reasons that it would have been obvious for a skilled artisan “to allow a parent, specifically the mother of the infant, to record the phonemes used in the Bennett invention so as to provide a learning toy which uses the comforting and known voices of a parent, thus engaging the infant.” Id. Appellants present several arguments alleging Examiner error. App. Br. 5–10; Reply Br. 2–5. Appellants argue that the Examiner erred because neither the Bennett or Parsons reference discloses the limitation of “stimulates the development of phonetic categories by the infant,” nor do the Bennett or Parsons devices “play ‘auditory pieces comprising infant-specific repetitive isolated phonemes in a voice similar to the voice of the infant's mother, in pitches that were not recorded by the infant's mother.’” App. Br. 5. Explaining further, Appellants assert the infant-specific data structure, represented by the claim element of “auditory pieces comprising infant- specific repetitive isolated phonemes in a voice similar to the voice of the infant's mother, in pitches that were not recorded by the infant's mother,” should be given patentable weight because this data structure is essential to achieving the “goal” of claim 1. Id. at 5. This goal, according to Appellants, is characterized by the claim limitation, “wherein the device stimulates the development of phonetic categories by the infant by exposing the infant to the infant-specific auditory pieces, whereby an infant is usually more attentive to his/her mother voice than to other unfamiliar voices.” Id. Appellants’ arguments directed to an “infant-specific data structure” are not convincing. We note initially that claim 1 does not refer explicitly to an “infant-specific data structure.” Id. at 6. Instead, claim 1 refers to Appeal 2012-001719 Application 12/723,594 5 “auditory pieces comprising infant-specific repetitive isolated phonemes in a voice similar to the voice of the infant's mother, in pitches that were not recorded by the infant's mother” and “infant-specific auditory pieces.” “[T]he PTO applies to the verbiage of the proposed claims the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). According to the Specification, an “auditory piece” is defined functionally by what it does as “(i) auditory data featuring a musical structure, (ii) one or more phonemes, (iii) other musical sounds such as beat, or (iv) any combination thereof.” Spec. 7:3–5. The Specification describes multiple ways to create these auditory pieces, such as by learning the user’s voice characteristics “to compose auditory pieces comprising phonemes that were not previously recorded by the user” (Id. at 18:20–21); or by using “melodies, and/or phonemes in pitches, which were not originally recorded by the parent” (Id. at 20:12–13). When given its broadest reasonable construction, the phrase “configured to play auditory pieces” is understood to mean that the device is programmed with, or has stored therein, auditory pieces, and the auditory pieces are recorded in a voice similar to the voice of the infant's mother, and in pitches that were not recorded by the infant's mother.2 Appellants have not shown that the playing of “auditory pieces” as recited in claim 1 is structurally distinguishable from Bennett. As 2 See In re Giannelli, 739 F.3d 1375 (Fed. Cir. 2014) and Aspex Eyewear v. Marchon Eyewear, 672 F.3d 1335 (Fed. Cir. 2012). See also Typhoon Touch Techs. v. Dell, Inc., 659 F.3d 1376 (Fed. Cir. 2011). Appeal 2012-001719 Application 12/723,594 6 recognized by the Examiner, claim 1 does not require that the phonemes be present in the infant’s mother’s voice; rather, claim 1 requires that the phonemes be “in a voice similar to the voice of the infant’s mother, in pitches that were not recorded by the infant’s mother.” Ans. 5–6. The Specification likewise supports the Examiner’s position in stating “in order to compose the auditory piece in a voice similar to the user's voice, the software learns the voice characteristics of the user and uses those characteristics for composing the auditory piece.” Spec. 18:14–16. Examples of voice characteristics include “characteristic frequencies and amplitudes, characteristic harmonics, or a variety of models.” Id. at 16–18. Based on the record before us, we agree with the Examiner’s position that the language of the claims do not specify what constitutes a voice “similar to the voice of the infant’s mother,” and that the language of the claims is broad enough to “read on the sounds being recorded in played in any voice that shares any similarity with that of the mother.” Id. at 6–7. Additionally, we note that Bennett recognizes that “[t]he user may then select a voice type that best matches their voice or needs.” See Bennett ¶ 76. Based on the record before us, Appellants do not persuasively apprise or inform us that Bennett’s device for stimulating development of phonetic categories by an infant, is not capable of playing infant-specific “auditory pieces” created using a voice similar to the voice of the infant's mother, and in pitches that were not recorded by the infant's mother. Moreover, in any event, the Examiner proposes to modify Bennett using the teachings of Parsons regarding the use of a limited set of available voices, to have a parent (the mother of the infant) record the phenomes used in Bennett “to provide a learning toy using comforting and known voices of a parent, thus engaging the infant.” Ans. 4. Appeal 2012-001719 Application 12/723,594 7 Appellants’ further argument that the limitation of playing infant- specific “auditory pieces” be accorded patentable weight because infant specific is necessary to achieve the goal of the device, e.g., stimulating the development of infant-specific phonetic categories, is likewise not persuasive. Appellants do not persuasively apprise or inform us that Bennett’s device for stimulating development of phonetic categories by an infant, is not capable of stimulating the development of infant-specific phonetic categories. As noted above, Bennett suggests that the user may select a voice type that matches their voice or needs. Appellants’ related argument, that Bennett discloses a general, non- infant specific device that does not effectively stimulate the development of phonetic categories, is also not convincing. App. Br. 9–10; Reply Br. 2–3. The mere fact, if it be a fact, that one device is better than the other at stimulating the development of phonetic categories, does not apprise us of how the Examiner’s findings or conclusion of obvious is in error. Moreover, the Examiner points to the description in Bennett concerning “infant specific repetitive phonemes” and further how the “system may be adapted to playback the ‘babble-like sounds that infants can hear’” to stimulate the development of phonetic categories. Ans. 6. We note that Bennett’s disclosure that “[t]he acoustic module 305 may be utilized to playback phoneme sequences that are appropriate to train the hearing and speaking abilities of infants” is suggestive of being infant specific. See Bennett ¶ 57. Appellants’ counterargument, that Bennett does not support infant specific repetitive phonemes because “statistical clustering is not infant specific, because the idea of infant specific, in the context of the claimed invention, is that two neighboring infants should hear different sounds when their Appeal 2012-001719 Application 12/723,594 8 mothers have different voices” does not apprise us of error in this regard. Reply Br. 4. Appellants additionally argue that the portion of the claim limitation “in pitches that were not recorded by the infant’s mother,” is not disclosed by Bennett or Parsons alone or in combination. Id. at 7–8. Appellants’ argument with regards to Parsons is misplaced, because the Examiner relies on the disclosure in Bennett to support this limitation. See Bennett ¶ 13 (disclosing that pitch of the playing of the generated audio representation may be adjusted within the toy). For the reasons provided supra, Appellants have not shown that the playing of “auditory pieces” “in pitches that were not recorded by the infant’s mother” is structurally distinguishable from Bennett, nor that the Bennett structure is not capable of performing this function. See Bennett ¶ 13. We agree with the Examiner’s position that the language of the claims do not define the claim term “similar voice”, and thus the language of the claims is broad enough to “read on the sounds being recorded in played in any voice that shares any similarity with that of the mother.” Id. at 6–7. Additionally, we note that Bennett recognizes that “[t]he user may then select a voice type that best matches their voice or needs.” See Bennett ¶ 76. Further, Appellants’ contention that “there is absolutely no suggestion or motivation to combine Bennett and Parsons because Bennett is a nice mass-produced baby toy that has nothing to do with printed materials, while Parsons is focused on the infant’s visual sense” is not persuasive. Reply Br. 4. The Examiner reasonably explains that it would have been obvious to allow a parent, specifically the mother of the infant, as taught in Parsons, to record the phonemes for use in the device for stimulating development of phonetic categories of Bennett, “so as to provide a learning toy which uses Appeal 2012-001719 Application 12/723,594 9 the comforting and known voices of a parent, thus engaging the infant.” Ans. 4. Appellants do not apprise us of error in the Examiner’s reason to combine the teachings of Bennett and Parsons, which is expressly articulated and supported by rational underpinnings.3 For the reasons provided and based on the record before us, we sustain the rejection of claim 1, and claims 2, 3, 5, 7, 9–11 and 13, which fall therewith. Claim 8 as unpatentable over Bennett, Parsons, and “The Babbler” Appellants do not provide a separate argument in addressing the rejection of claim 8 as unpatentable over Bennett, Parsons and The Babbler. For the reasons discussed supra with respect to claim 1, we likewise sustain the rejection of claim 8. DECISION The decision of the Examiner to reject claims 1–3, 5, 7–11, and 13 is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011). AFFIRMED mls 3 See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007).