DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant's arguments regarding the claim eligibility have been fully considered but they are not persuasive.
Applicant argues that (REMARKS, p.2):
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Examiner respectfully disagrees. Applicant is advised that, according to MPEP 2106 and the 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG), the Office determines claim eligibility under 35 U.S.C. § 101 using the Alice framework. The analysis under Step 2A - Prong 1 evaluates whether the claim recites a judicial exception. Step 2A - Prong 2 asks if the claim recites additional elements that integrate the judicial exception into a practical application, and, if necessary, Step 2B further analyzes whether or not the claim provides an Inventive Concept. That is, the claim needs to be analyzed limitation by limitation, and/or element by element, following the MPEP/2019 PEG guidelines.
In the instant case, focusing on what the inventors have invented exactly and giving the broadest reasonable interpretation (BRI) to the claims, Examiner asserts that the pending claims 12-23 are directed to an abstract idea of synchronizing a pre-recorded music accompaniment to a music playing of a user. In particular, the “heart” of the claimed invention is directed to a mathematical algorithm of adapting/compensating a timing of the output acoustic signal based on a lag between a timing of the detected musical events in the input acoustic signal and a timing of musical events of the played music accompaniment. The claims do not recite any additional element that amounts to “significantly more” than the identified judicial exception or reflect an inventive concept as set forth in MPEP 2106.05(a). At most, the pending claims recite an improved mathematical algorithm, which is an abstract idea under the 2019 PEG, and an improved abstract idea is still an abstract idea.
Applicant argues that “the claims are analogous to those in McRO, Inc. v. Bandai Namco Games, Inc.”. Examiner respectfully disagrees.
As determined by the Federal Circuit, the claims in McRo focus on a specific means or method that improves the relevant technology. The court identified that the claimed invention improves computer animation through the use of specific rules, rather than human artists, to set morph weights (relating to facial expressions as an animated character speaks) and transition parameters between phonemes (relating to sounds made when speaking). The McRO court examined how the claimed rules enabled the automation of specific animation tasks that previously could not be automated when determining that the claims were directed to improvements in computer animation instead of an abstract idea. The court indicated that it was the incorporation of the particular claimed rules in computer animation that "improved [the] existing technological process". Simply speaking, the logic in McRO can apply to things like improved ways of storing data in a computing system, thus makes everything the computing system does “improved”, while the abstract idea claimed by the present application is not improving the functioning of the computing system (or any specific machine which is used for synchronizing a pre-recorded music accompaniment to a music playing of a user) but just improving the algorithm itself or one calculation done BY the computing system. Therefore, McRo does not apply to the present application.
Applicant further argues that (REMARKS, p.3):
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Examiner respectfully disagrees. In order to evaluate whether or not the judicial exception is integrated into a practical application, additional limitations in the claim beyond the judicial exception must be identified and then analyzed, individually and in combination, to determine whether or not they integrate the exception into a practical application. It is held that an additional limitation in the claim integrates the exception into a practical application if it improves the functioning of a computer or improves the technology or technical field uses the judicial exception in conjunction with a particular machine or manufacture that is integral to the claim, transforms or reduces a particular article to a different state or thing, or applies a judicial exception in some other meaningful way beyond generally linking it to a particular technological environment. In other words, a claim is directed to a practical application when it has the specificity required to transform the claim from one claiming only a result to one claiming a way of achieving it. In the instant case, representative claim 13 recites the additional limitations “said user's music playing being captured by at least one microphone delivering an input acoustic signal feeding a processing unit, said processing unit comprising a memory for storing data of the pre-recorded music accompaniment and providing an output acoustic signal based on said pre-recorded music accompaniment data to feed at least one loudspeaker playing the music accompaniment for said user”. However, none of the recited additional elements is qualified for being “significantly more” or reflects an inventive concept” because they do not impose any meaningful limits on practicing the abstract idea to transform the claim from one claiming only a result to one claiming a way of achieving it. In particular, things like “real-time” synchronizing a pre-recorded music accompaniment to a music playing of a user and “a signal-level constraint on how the output acoustic signal evolves over time” are all considered well-understood, routine, conventional in the art. They do not amount to be “significantly more” to integrate the abstract idea (mental + math) into a practical application or an “inventive concept”. At most, these additional elements generally link the judicial exception to a particular technological environment or field of use.
It is held that simply setting forth advantages (i.e. benefits) of use without providing any rational/evidence to how/why the claimed elements amount to significantly more than the judicial exception could be treated as mere instructions to apply the judicial exception on a computer component (MPEP 2106.05(f)), but not qualified for an improvement (i.e. enhancement) in the functioning of a computer or an improvement to another technology or technical field. The key is to show that the claim goes beyond just performing a calculation and provides a practical application or significant improvement through the use of that calculation. See MPEP 2106.04(d)(I) and 2106.05(a).
The rest of the Applicant’s arguments regarding the claim eligibility are reliant upon the issues discussed above or have been fully addressed by the analyses under 35 USC 101 as set forth below in this Office Action.
Claim Rejections - 35 USC § 101
3. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 101 that form the basis for the rejections under this section made in this Office action:
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
4. Claims 13-23 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Under the 2019 PEG (now been incorporated into MPEP 2106), the revised procedure for determining whether a claim is "directed to" a judicial exception requires a two-prong inquiry into whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human interactions such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)-(c), (e)-(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not "well-understood, routine, conventional" in the field (see MPEP § 2106.0S(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.
Claims 13-23 are directed to an abstract idea of synchronizing a pre-recorded music accompaniment to a music playing of a user.
Specifically, representative claim 13 recites:
A method for synchronizing a pre-recorded music accompaniment to a music playing of a user, said user's music playing being captured by at least one microphone delivering an input acoustic signal feeding a processing unit, said processing unit comprising a memory for storing data of the pre-recorded music accompaniment and providing an output acoustic signal based on said pre-recorded music accompaniment data to feed at least one loudspeaker playing the music accompaniment for said user,
wherein said processing unit, in real-time:
(A1) analyses the input acoustic signal to detect musical events in the input acoustic signal so as to determine a tempo in said user's music playing,
(A2) compares the detected musical events to the pre-recorded music accompaniment data to determine at least a lag diff between a timing of the detected musical events and a timing of musical events of the played music accompaniment, said lag diff being to be compensated,
(A3) adapts a timing of the output acoustic signal to provide a continuous tempo convergence, on the basis of said lag diff and a synchronization function F given by:
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where x is a temporal variable, $tempo is the determined tempo in said user's music playing, and w is a duration of compensation of said lag diff.
The claim limitations in the abstract idea have been highlighted in bold above; the remaining limitations are “additional elements”.
The highlighted portion of the claim constitutes an abstract idea under the 2019 Revised Patent Subject Matter Eligibility Guidance and the additional elements are NOT sufficient to amount to significantly more than the judicial exceptions, as analyzed below:
Step
Analysis
1. Statutory Category ?
Yes.
Method
2A - Prong 1: Judicial Exception Recited?
Yes.
Under its broadest reasonable interpretation (BRI), each or the combination of acts (A1) and (A2) encompasses mental processes, namely concepts performed in the human mind using mental steps/critical thinking and/or with the aid of pen and paper. Note, the courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). See also to MPEP 2106.04(a)(2).III.
Under its BRI, (A3) encompasses mathematical concepts, namely a series of calculations leading to one or more numerical results or answers, which can be performed in the human mind using mental steps and/or with the aid of pen and paper as well.
Nothing in the bolded portion precludes the acts of (A1)-(A3) from practically being performed in the mind and/or using a pen and paper.
The bolded portion recites “said processing unit, in real-time”. According to the MPEP 2106.04(a)(2), if a claim limitation, under its BRI, covers mental processes except for the mention of generic computer components performing computing activities via basic function of the computer, then the claim is likely considered to be directed to an ineligible abstract idea, as it essentially describes a mental process that could be performed by a human without the computer components adding any significant practical application beyond the abstract concept itself.
As such, the bolded portion falls within a combination of the “Mathematical Concepts” and “Mental Process” Groupings of Abstract Ideas defined by the 2019 PEG.
2A - Prong 2: Integrated into a Practical Application?
No.
The claim as a whole does not integrate the abstract idea into a practical application.
Claim 13 recites: “said user's music playing being captured by at least one microphone delivering an input acoustic signal feeding a processing unit, said processing unit comprising a memory for storing data of the pre-recorded music accompaniment and providing an output acoustic signal based on said pre-recorded music accompaniment data to feed at least one loudspeaker playing the music accompaniment for said user”. None of these additional elements is considered to be qualified for a significant or meaningful limitation because, at most, they only generally link the judicial exception to a particular technological environment or field of use. Accordingly, these additional elements do not integrate the abstract idea into a practical application since they do not impose any meaningful limits on practicing the abstract idea.
In general, the claim as a whole does not meet any of the following criteria to integrate the abstract idea into a practical application:
An additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field;
an additional element that applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition;
an additional element implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim;
an additional element effects a transformation or reduction of a particular article to a different state or thing; and
an additional element applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
Various considerations are used to determine whether the additional elements are sufficient to integrate the abstract idea into a practical application. However, in all of these respects, the claim fails to recite additional elements which might possibly integrate the claim into a particular practical application. Instead, based on the above considerations, the claim would tend to monopolize the algorithm across a wide range of applications.
2B: Claim provides an Inventive Concept?
No.
See analysis given in 2A - Prong 2 above.
Focusing on what the inventors have invented exactly, it is considered that the “heart” of pending claim 13 is directed to a mathematical algorithm of adapting/compensating a timing of the output acoustic signal based on a lag between a timing of the detected musical events in the input acoustic signal and a timing of musical events of the played music accompaniment. The claim does not recite any additional element that amounts to “significantly more” or an “inventive concept” under the 2019 PEG (see also MPEP 2106.05).
The claim is therefore ineligible under 35 USC 101.
The dependent claims 14-23 inherit attributes of the independent claim 13, but do not add anything which would render the claimed invention a patent eligible application of the abstract idea. These claims merely extend (or narrow) the abstract idea which do not amount for "significant more" because they merely add details to the algorithm which forms the abstract idea as discussed above.
Hence the claims 13-23 are treated as ineligible subject matter under 35 U.S.C. § 101.
Examiner’s Note
5. While there are related references that discuss synchronizing a pre-stored music recording to a music playing of a user., the prior art of record does not specifically provide teachings for the claimed limitations including:
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It is these limitations, as they are claimed in the combination recited in independent claim 13, that would make the pending claims 13-23 of the present application distinguish over the prior art of record.
Conclusion
6. THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Citation of Relevant Prior Art
7. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Fayan (US 20210110803 A1) -- SYNCHRONIZING PLAYBACK OF A DIGITAL MUSICAL SCORE WITH AN AUDIO RECORDIN.
Shaffer (US 20170124898 A1) -- Music Synchronization System And Associated Methods.
Reynolds et al. (US 8637757 B2) -- Systems And Methods For The Creation And Playback Of Animated, Interpretive, Musical Notation And Audio Synchronized With The Recorded Performance Of An Original Artist.
LYSKE (US 20180181730 A1) -- ENHANCED CONTENT TRACKING SYSTEM AND METHOD.
Contact Information
8. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANCHUN QIN whose telephone number is (571)272-5981. The examiner can normally be reached 9AM-5:30PM EST M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dedei Hammond can be reached at (571)270-7938. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JIANCHUN QIN/Primary Examiner, Art Unit 2837