Plantronics, Inc.

Patent Trials and Appeals BoardMar 11, 2021

2019006563 (P.T.A.B. Mar. 11, 2021)

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. 15/231,228 08/08/2016 Arthur Leland Schiro 01-8011/US 1975 32681 7590 03/11/2021 PLANTRONICS, INC. IP DEPARTMENT/LEGAL 345 ENCINAL STREET P.O. BOX 635 SANTA CRUZ, CA 95060-0635 EXAMINER LELAND III, EDWIN S ART UNIT PAPER NUMBER 2677 NOTIFICATION DATE DELIVERY MODE 03/11/2021 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): neely.frazier@poly.com patentdocket@poly.com patents@poly.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ARTHUR LELAND SCHIRO ____________________ Appeal 2019-006563 Application 15/231,228 Technology Center 2600 ____________________ Before ALLEN R. MacDONALD, JEREMY J. CURCURI and ADAM J. PYONIN, Administrative Patent Judges. MacDONALD, 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 1–3, 9, 12, 17, and 18. Claims 7, 8, 15, 16, and 20 are withdrawn from consideration. Claims 4–6, 10–11, 13–14, and 19 have been cancelled. Appeal Br. 1 and 19. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellant identifies the real party in interest is Plantronics, Inc. Appeal Br. 1. Appeal 2019-006563 Application 15/231,228 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of the claimed subject matter (formatting and bracketed material added): 1. A method for detecting user speech comprising: [A.] outputting from a loudspeaker a sound masking noise in an open space; [B.] detecting a sound in the open space with a microphone and outputting a microphone output signal corresponding to the sound, wherein the sound comprises the sound masking noise; [C.] converting the microphone output signal to a digital audio signal; [D.] identifying a spoken vowel sound in the sound received at the microphone from the digital audio signal comprising: [i.] detecting a plurality of harmonic frequency signal components; [ii.] filtering out a low frequency component comprising the sound masking noise; and [iii.] amplifying one or more higher frequency harmonics in the plurality of harmonic frequency signal components; and [E.] outputting an indication of user speech detection responsive to identifying the spoken vowel sound. Appeal 2019-006563 Application 15/231,228 3 REFERENCES2 The Examiner relies on the following references: Name Reference Date Carter US 2002/0164013 A1 Nov. 7, 2002 Saito US 7,146,013 B1 Dec. 5, 2006 Benway US 2015/0243297 A1 Aug. 27, 2015 Sachdev US 2017/0169828 A1 June 15, 2017 Mortensen WO 2016/007528 A1 Jan. 14, 2016 REJECTION A. The Examiner rejects claims 1, 9, 12, and 17 under 35 U.S.C. § 103 as being unpatentable over the combination of Mortensen, Benway, and Sachdev. Final Act. 5–11. We select claim 1 as the representative claim for this rejection. The contentions discussed herein as to claim 1 are dispositive as to this rejection. Therefore, except for our ultimate decision, we do not address the merits of the § 103 rejection of claims 9, 12, and 17 further herein. B. The Examiner rejects claims 2 and 3 under 35 U.S.C. § 103 as being unpatentable over the combination of Mortensen, Benway, Sachdev, and Carter. Final Act. 11–12. 2 All citations herein to patent and pre-grant publication references are by reference to the first named inventor only. Appeal 2019-006563 Application 15/231,228 4 The Examiner rejects claims 18 under 35 U.S.C. § 103 as being unpatentable over the combination of Mortensen, Benway, Sachdev, and Saito. Final Act. 12–13. The contentions discussed herein as to claim 1 are dispositive as to these rejections. Therefore, except for our ultimate decision, we do not address the merits of the § 103 rejections of claims 2, 3, and 18 further herein. OPINION We have reviewed the Examiner’s rejections in light of Appellant’s arguments that the Examiner has erred. Appellant’s contentions we discuss are dispositive as to the rejections on appeal. Therefore, Appellant’s other contentions are not discussed in detail herein. A. In rejecting claim 1, the Examiner determines: It would be obvious for a person having ordinary skill in the art at the effective filing date of the application to modify the method and computer readable medium of Mortensen et al. with the sound masking of Benway et al. because optimizing the frequencies for analysis improves accuracy. Final Act. 7 (emphasis added). B. Appellant contends that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) because: Mortenson [sic] teaches a low-complexity voice activity detector which detects spoken speech utilizing vowels. Mortensen makes no mention whatsoever of sound masking systems or sound masking noise. Examiner does not and cannot provide a reasoned explanation having rational underpinning Appeal 2019-006563 Application 15/231,228 5 how outputting sound masking noise (e.g., recited by [claim 1] clause [“outputting from a loudspeaker a sound masking noise in an open space”]) would improve the accuracy of the Mortenson [sic] voice activity detector. It would not. Adding sound masking noise to the sound detected by the Mortenson [sic] voice activity detector would not “optimize the frequencies for analysis” and one of ordinary skill would not add unwanted noise to a signal to be analyzed. Appeal Br. 9. C. In response, the Examiner modifies the rejection and determines: It would be obvious for a person having ordinary skill in the art at the effective filing date of the application to modify the method and computer readable medium of Mortensen et al. with the sound masking of Benway et al. because optimizing the frequencies for analysis improves accuracy as well as improving worker productivity and privacy. See Paragraphs [0001-0004] of Benway et al. Ans. 10 (emphasis added). D. In further argument, Appellant contends that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) because: Examiner provides no reasoning how adding Benway sound masking noise would “optimize the frequencies for analysis” in the Mortensen detector. It would not. Examiner fails to respond to Applicant’s argument that doing so does the opposite, adding unwanted noise to the signal to be analyzed. See Opening Brief at pg. 9, 2nd paragraph (reproduced above). Examiner also presents the new rationale (for the first time during prosecution) that modifying Mortensen with the sound masking of Benway improves the Mortensen invention by improving “worker productivity and privacy.” Answer at pg. 10, lines 15–16. Examiner’s reasoning does not have rational underpinning. The Mortensen invention is an audio processing Appeal 2019-006563 Application 15/231,228 6 circuit for low-complexity voice activity detection, which aims to detect the presence of speech as opposed to silence or noise. See, e.g., Mortensen at Abstract. Thus, improving worker productivity and privacy is immaterial to and does not improve the Mortensen invention. As Examiner himself previously argued, the correct inquiry is whether the proposed modification would “make it a more accurate detector.” Answer at pg. 10, lines 13–14. Reply Br. 15. E. As articulated by the Federal Circuit, the Examiner’s burden of proving non-patentability is by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the evidence is the standard that must be met by the PTO in making rejections”). “A rejection based on section 103 clearly must rest on a factual basis[.]” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. We conclude the Examiner’s analysis fails to meet this standard because the rejection does not provide a reasoning with a rational underpinning. We agree with Appellant that Examiner does not provide a sufficient reasoned explanation having rational underpinning showing how outputting sound masking noise would improve the accuracy of the Mortensen voice activity detector or improve worker productivity and privacy when combined with the Mortensen voice activity detector. We conclude, consistent with Appellant’s argument, that the Examiner’s reasoning lacks a rational underpinning to support the Examiner’s determination that the references render claim 1 obvious. Appeal 2019-006563 Application 15/231,228 7 Therefore, we conclude that there is insufficient articulated reasoning to support the Examiner’s final conclusion that claim 1 would have been obvious to one of ordinary skill in the art at the time of Appellant’s invention. CONCLUSION The Appellant has demonstrated the Examiner erred in rejecting claims 1–3, 9, 12, 17, and 18 as being unpatentable under 35 U.S.C. § 103. The Examiner’s rejections of claims 1–3, 9, 12, 17, and 18 as being unpatentable under 35 U.S.C. § 103 are reversed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 9, 12, 17 103 Mortensen, Benway, and Sachdev 1, 9, 12, 17 2, 3 103 Mortensen, Benway, Sachdev, and Carter 2, 3 18 103 Mortensen, Benway, Sachdev, and Saito 18 Overall Outcome 1–3, 9, 12, 17, 18 REVERSED