Nikolaj Hviid

Patent Trials and Appeals Board

Mar 16, 2020

15113437 - (D) (P.T.A.B. Mar. 16, 2020)

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.
15/113,437 07/21/2016 Nikolaj Hviid BRAGI GmbH-P0141US 9242
133690 7590 03/16/2020
Goodhue, Coleman & Owens, P.C.
12951 University Ave
Suite 201
Clive, IA 50325
EXAMINER
TRUONG, KENNY H
ART UNIT PAPER NUMBER
2653
NOTIFICATION DATE DELIVERY MODE
03/16/2020 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):
USPTO@dockettrak.com
docketing@goodhue.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NIKOLAJ HVIID
Appeal 2018-006870
Application 15/113,437
Technology Center 2600
Before ERIC B. CHEN, JAMES B. ARPIN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–5 and 7–11, all of the pending
claims.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party-in-interest as BRAGI GmbH.
Appeal Br. 4.
2 Claim 6 is cancelled. Appeal Br. 50.
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CLAIMED SUBJECT MATTER
Appellant’s invention relates to “an ear phone system for sports
activities, which is capable of providing performance relevant information in
a simple and intuitive easily graspable manner.” Spec. 2:1–3.3
Claims 1 and 11 are independent. Claims 1–4, reproduced below with
limitations at issue italicized, are exemplary of the claimed subject matter:
1. A multifunctional earphone system for sports
activities, the system comprising:
a first apparatus configured to be carried in one of a user’s
ears, the first apparatus comprising a first data communication
unit and a first loudspeaker; and
a second apparatus configured to be carried in the user’s
other ear, the second apparatus comprising a second data
communication unit and a second loudspeaker;
wherein at least one of the first apparatus and the second
apparatus comprises a sensor unit and a data processing unit,
wherein the data processing unit is configured to generate
performance data based on measurement data acquired by the
sensor unit;
wherein the first apparatus further comprises a signal
processing unit configured to generate a binaural audio signal
based on the performance data, the binaural audio signal
comprising a first signal part to be output by the first loudspeaker
and a second signal part to be output by the second loudspeaker,
wherein the binaural signal evokes a spatial hearing impression
with directional localization;

3 Throughout this Decision we refer to: (1) Appellant’s Specification filed
July 21, 2016 (“Spec.”); (2) the Final Office Action mailed July 12, 2017
(“Final Act.”); (3) the Appeal Brief filed December 29, 2017 (“Appeal Br.”);
(4) the Examiner’s Answer mailed April 25, 2018 (“Ans.”); and (5) the
Reply Brief filed June 20, 2018 (“Reply Br.”).
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wherein the first data communication unit is configured to
communicate the second signal part of the binaural audio signal
to the second data communication unit;
and
wherein the signal processing unit is configured to modify
pre-stored audio data in dependency on at least one value of the
performance data.

2. The system according to claim 1, wherein the
binaural audio signal generated by the signal processing unit
comprises a signal component that is indicative of a value of the
performance data.

3. The system according to claim 2, wherein the signal
processing unit is further configured to generate the binaural
audio signal such that a spatial position of the signal component
is dependent on the value of the performance data.

4. The system according to claim 3, wherein the spatial
position of the signal component relative to a plane is dependent
on a difference between the value of the performance data and a
predetermined reference value.
Appeal Br. 49–50 (Appendix-Claims).
REJECTIONS
The Examiner rejects claims 1, 2, and 7–11 under 35 U.S.C. § 103 as
unpatentable over the combined teachings of NEWHAM (US 2013/0316642
A1; published Nov. 28, 2013) (“Newham”) and Vavrus et al. (US
2014/0348367 A1; published Nov. 27, 2014) (“Vavrus”). Final Act. 2–8.
The Examiner rejects claims 3–5 under 35 U.S.C. § 103 as
unpatentable over the combined teachings of Newham, Vavrus, and Ruwe et
al. (US 2014/0079257 A1; published Mar. 20, 2014) (“Ruwe”). Id. at 8–10.
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OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of Appellant’s arguments and evidence.
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv).
Obviousness Rejection of Claim 1
The Examiner rejects claim 1 under 35 U.S.C. § 103 as unpatentable
over the combined teachings of Newham and Vavrus. Final Act. 2–6. We
adopt the Examiner’s findings and conclusions as our own and add the
following primarily for emphasis.
Appellant argues neither “Newham nor Vavrus nor the combination
thereof teach the claimed binaural signal based on performance data.
Indeed, Newham does not use the term binaural at all. Newham at best
indicates that ‘stereo-quality audio may be streamed from a first Bluetooth®
device (e.g., phone) to another Bluetooth® device (e.g., headphones).’”
Appeal Br. 15. Appellant further argues “Vavrus also fails to use the term
binaural.” Id. at 17.
The Examiner responds,
Contrary to Appellant’s assertion, Merriam-Webster defines the
term “binaural” as “of, relating to, or involving two or both
ears” therefore binaural signals are merely signals generated by
two earpieces into both of a user’s ears. Based on this
interpretation of “binaural signals”, Newham teaches binaural
signals by teaching signals generated by both earpieces to both
ears of a user (para. [0041] – [0042]) and Vavrus teaches
outputting performance values to an earpiece (para. [0042])
thus the combination of Newham and Vavrus teach binaural
signals indicative of performance data.
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Ans. 3 (citing Newham).
Appellant’s argument is unpersuasive because Appellant fails to
establish the Examiner’s interpretation of “binaural audio,” as recited in
claim 1, is not the broadest reasonable interpretation consistent with
Appellant’s Specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). The Specification does not define expressly
“binaural audio.” But, the Specification does describe that a “binaural audio
signal consists of a first (right) signal part . . . and a second (left) signal
part.” Spec. 24:31– 25:30. This description is consistent with the
Examiner’s Merriam-Webster definition of binaural as “‘relating to, or
involving two or both ears.’” Ans. 3. Appellant, moreover, fails to set forth
a description of the term in the Specification that is inconsistent with the
Examiner’s interpretation. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). Appellant, therefore, fails to demonstrate persuasively that the
Examiner’s broad interpretation of a binaural audio signal as encompassing
Newham’s “stereo-quality audio” (Newham ¶ 37, Fig. 1) is inconsistent with
Appellant’s Specification or is otherwise unreasonable. In re Smith Int’l,
Inc., 871 F.3d 1375, 1382–83 (Fed. Cir. 2017).
As Appellant notes, Newham teaches that “the wrist display transmits
the audio to each of the ear pieces.” Appeal Br. 16 (citing Newham ¶¶ 41–
43) (emphasis added). Furthermore, although we do not rely on the finding
here, we note that Vavrus, in discussing that “stereo [signals] could be
transmitted,” also teaches a binaural audio signal. Vavrus ¶ 115. We,
therefore, find unpersuasive Appellant’s argument that neither “Newham nor
Vavrus nor the combination thereof teach the claimed binaural signal.”
Appeal Br. 15.
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Next, Appellant argues that “Newham and Vavrus do not teach a
signal processing unit configured to modify pre-stored data [based on]
performance data.” Appeal Br. 18 (emphasis omitted).
This argument is unpersuasive. The Examiner relies on Vavrus’
processor 36, which is “configured to generate performance data . . . from
the real time performance sensors 42) based on measurement data acquired
by the sensor unit.” Final Act. 4 (citing Vavrus ¶ 61, Fig. 4) (emphasis
omitted). Of particular relevance, the Examiner finds,
Vavrus teaches outputting performance values via speakers
within an earpiece based on sensor readings. Further, in the
response to arguments section in the Final Office Action, the
examiner contended that the sensor readings would have to be
recorded in memory prior to being outputted to the earpiece.
After the earpiece has outputted the performance value, the
stored sensor reading would then be updated with a new sensor
reading and the same process is repeated therefore Vavrus does
teach a signal processing unit configured to modify pre-stored
data in dependency on at least one value of the performance
data.
Ans. 4.
In response, Appellant argues “Vavrus does not teach the second
sensor reading would then be updated with a new sensor reading, therefore
there is no modification of pre-stored data.” Reply Br. 22.
Appellant’s arguments are not persuasive because Appellant fails to
demonstrate error in the Examiner’s finding that Vavrus’ signal processing
unit 36 would necessarily modify pre-stored audio data by continuously
processing real-time performance data received from real time performance
sensors 42. Final Act. 4; Ans. 4. Even though Vavrus does not expressly
indicate that stored audio corresponding to real-time sensor reading would
then be updated with a new sensor reading in memory 38 and the process
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repeated (Ans. 4), “obviousness is not determined by what the references
expressly state but by what they would reasonably suggest to one of ordinary
skill in the art.” In re DeLisle, 406 F.2d 1386, 1389 (CCPA 1969). That is,
Appellant argues, “Vavrus does not teach the second sensor reading would
then be updated with a new sensor reading, therefore there is no
modification of pre-stored data.” Reply 22. Nevertheless, Appellant fails to
argue persuasively or present persuasive evidence that the Examiner’s
finding would not have been obvious in view of Vavrus’ teaching of
processor 36 continuously processing digital data received from real time
performance sensors 42 into audio by continuously modifying pre-stored
audio data in memory 38. Final Act. 4; Ans. 4. Appellant fails to explain
why one skilled in the art would not have considered such storing integral
and necessary to Vavrus’ translation of sensor data into audio data
transmitted to “the athlete’s headset 14.” Vavrus ¶ 61.
We, therefore, sustain the Examiner’s obviousness rejection of
independent claim 1. We also sustain the Examiner’s obviousness rejection
of independent claim 11, for which Appellant provides similar arguments.
Appeal Br. 28–39; Reply Br. 29–40. We sustain for similar reasons the
rejection of claims 7–10, which depend from claim 1, and were either not
separately argued, or were nominally separately argued.
Obviousness Rejection of Claim 2
The Examiner finds the combination of Newham and Vavrus teaches
or suggests “wherein the binaural audio signal generated by the signal
processing unit comprises a signal component that is indicative of a value of
the performance data,” as recited in claim 2. Final Act. 6; Ans. 3–4.
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Appellant argues because “neither reference teaches a binaural signal,
neither reference can teach a signal component of a binaural signal that is
indicative of a value of the performance data,” neither Newham nor Vavrus
teaches this limitation. Appeal Br. 23–28; Reply Br. 24–28.
As discussed above with respect to claim 1, we find unpersuasive
Appellant’s argument that neither reference teaches a binaural signal.
Because Appellant’s traversal of the Examiner’s rejection of claim 2 is
predicated upon this unpersuasive argument, we find Appellant’s argument
for claim 2 unpersuasive for the same reasons discussed above for claim 1.
We, therefore, sustain the Examiner’s obviousness rejection of
dependent claims 2.
Obviousness Rejection of Claims 3 and 5
Appellant argues claims 3, 4, and 5 as a group and so we select
claim 3 as exemplary of claims 3 and 5. Appeal Br. 39–44; Reply Br. 41–
48; see 37 C.F.R. § 41.37(c)(1)(iv). Claim 4 is discussed separately below.
The Examiner finds the combination of Newham, Vavrus, and Ruwe teaches
or suggests “wherein the signal processing unit is further configured to
generate the binaural audio signal such that a spatial position of the signal
component is dependent on the value of the performance data,” as recited in
claim 3. Final Act. 8–9; Ans. 4.
Appellant argues “the Examiner failed to mention the limitation of a
binaural signal and Newham, Vavrus, and Ruwe do not disclose such a
signal, therefore the rejection should be reversed.” Appeal Br. 39 (emphasis
omitted).
As discussed above with respect to claim 1, we find unpersuasive
Appellant’s argument that neither Newham nor Vavrus teaches a binaural
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signal. Therefore, because Appellant’s traversal of the Examiner’s rejection
of claim 3 is predicated on this unpersuasive argument, we find Appellant’s
argument regarding Newham and Vavrus unpersuasive for the same reasons
discussed above for claim 1. Appellant’s additional argument that Ruwe
fails to “mention the limitation of a binaural audio signal” is unpersuasive
because the Examiner relies on Newham and Vavrus rather than Ruwe to
teach “a binaural signal,” as claimed, and, therefore, the argument is not
responsive to the rejection. See Nat’l Steel Car, Ltd. v. Canadian Pac. Ry.,
Ltd., 357 F.3d 1319, 1336–37 (Fed. Cir. 2004) (rejecting argument directed
at the wrong reference).
Appellant, therefore, has not demonstrated error in the Examiner’s
findings, and so we sustain the Examiner’s obviousness rejection of
dependent claims 3 and 5.
Obviousness Rejection of Claim 4
The Examiner finds the combination of Newham, Vavrus, and Ruwe
teaches or suggests “wherein the spatial position of the signal component
relative to a plane is dependent on a difference between the value of the
performance data and a predetermined reference value,” as recited in claim
4. Final Act. 9–10; Ans. 5.
Appellant argues “[t]here is no mention of the spatial position of the
signal component relative to a plane that is dependent on the difference
between the sensor data and a predetermined reference value.” Appeal
Br. 45. Rather, “Ruwe is directed to a biometric monitoring assembly which
does not include anything related to spatial positioning or performance data.
Whether the warning signal is outputted by the acoustic driver of the ear cup
has nothing to do with spatial positioning.” Id. (citing Ruwe ¶ 32).
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The Examiner responds that “there would have to be a comparison
between a reference value and the sensor value to determine, for example,
whether the oxygen levels are unsafe therefore invoking the elicitation of a
warning signal.” Ans. 5.
Appellant’s argument is persuasive. Although we agree that the
portion of Ruwe cited by the Examiner describes a processor that outputs an
acoustic warning when sensor signal data indicates a problem, perhaps by
crossing a threshold, the Examiner does not demonstrate sufficiently that
Ruwe teaches or suggests “the spatial position of the signal component
relative to a plane is dependent on a difference between the value of the
performance data and a predetermined reference value,” as recited in
claim 4. According to the Specification, the generated binaural audio signal
used to represent the performance data “is audible for the user at a particular
spatial position” that “can be shifted or changed when the corresponding
value of the performance data changes.” Spec. 25:15–32. The shifting may
“take place relative to a vertical plane extending through the body of the user
or relative to a horizontal plane extending through the user’s head.” Id. We
do not find, and the Examiner does not show, how the cited portion of Ruwe
teaches this limitation.
Because we agree with at least one of the dispositive arguments
advanced by Appellant for the obviousness rejection of claim 4, we need not
reach the merits of Appellant’s other arguments. Accordingly, based on the
record before us, we do not sustain the Examiner’s obviousness rejection of
claim 4 over the combined teachings of Newham, Vavrus, and Ruwe.
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CONCLUSION
We affirm the Examiner’s rejection of claims 1, 2, and 7–11 under
35 U.S.C. § 103 as unpatentable over the combined teachings of Newham
and Vavrus.
We affirm the Examiner’s rejection of claims 3 and 5 under 35 U.S.C.
§ 103 as unpatentable over the combined teachings of Newham, Vavrus, and
Ruwe.
We reverse the Examiner’s rejection of claim 4 under 35 U.S.C. § 103
as unpatentable over the combined teachings of Newham, Vavrus, and
Ruwe.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2,
7–11
103 Newham, Vavrus 1, 2,
7–11

3, 5 103 Newham, Vavrus, Ruwe 3, 5
4 103 Newham, Vavrus, Ruwe 4
Overall
Outcome
1–3, 5,
7–11
4

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART