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 .
Rejections - 35 USC § 112
2. The following is a quotation of the second paragraph of 35 U.S.C. 112:
(B) CONCLUSION.--The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
3. Claims 5 and 15 are rejected under pre-AIA 35 U.S.C. 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claims 5 and 15 recite the limitation "a value that is greater as a sound generation timing between notes of the input pattern selected by the input pattern selection part is shorter ". The terms “greater” and “shorter” are relative terminology/terms of degree. There is no exact and/or explicit definition for these terms in the claims. Therefore, the use of such terms in the claims is “vague and indefinite”. See MPEP § 2173.05.
For prior art application purposes, any value is considered to be similar to "a value that is greater” or “shorter".
Claim Rejections - 35 USC § 101
4. 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.
5. Claims 1-20 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 1-20 are directed to an abstract idea of automatically performing a performance pattern in which sound generation timings of notes to be sounded are set.
Specifically, representative claim 1 recites:
An automatic performance apparatus which automatically performs a performance pattern in which sound generation timings of notes to be sounded are set, the automatic performance apparatus comprising:
a sound generation probability pattern acquisition part which acquires a sound generation probability pattern in which a probability of sounding a note is set for each sound generation timing of the performance pattern; and
an automatic performance part which performs an automatic performance by determining whether to sound the note for each sound generation timing of the performance pattern based on the probability of each sound generation timing set in the sound generation probability pattern acquired by the sound generation probability pattern acquisition part.
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.
Apparatus/System
2A - Prong 1: Judicial Exception Recited?
Yes.
See bolded portion listed above.
Under its broadest reasonable interpretation (BRI), the limitation “determining whether to sound the note for each sound generation timing of the performance pattern based on the probability of each sound generation timing set in the sound generation probability pattern acquired by the sound generation probability pattern acquisition part” encompasses a mental process, i.e. data manipulation, evaluation and judgment, namely concepts that can be performed in the human mind or with pen and paper.
Nothing in the claimed limitations precludes these limitations from practically being performed in the mind and/or using a 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
As such, the bolded portion of instant claim 1 falls within the “Mental Process” Grouping 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.
The limitation “An automatic performance apparatus which automatically performs a performance pattern in which sound generation timings of notes to be sounded are set” is recited at a high level of generality. Under the BRI, the combination of the recited automatic performance apparatus reads on a general-purpose computer performing a generic computer function of processing data. The generic limitation of “automatically performs a performance pattern in which sound generation timings of notes to be sounded are set” is no more than mere instructions to apply the abstract idea using the general-purpose computer. It is held that performing an abstract idea using a general-purpose computer system would not amount to significantly more than the abstract algorithm itself. See, for example, Whitserve LLC v. Dropbox, Inc. and MPEP 2106.05(f).
Under its BRI, the limitation “a sound generation probability pattern acquisition part which acquires a sound generation probability pattern in which a probability of sounding a note is set for each sound generation timing of the performance pattern” encompasses a mean for gathering the data/information necessary for performing the abstract idea. The claimed “acquisition part” does not require any particular devices or sensors to acquire the information. It could just as easily relate to the acquisition of a sound generation probability pattern from, e.g., look-up tables as opposed to the generation of actual measurement data. Thus claim 1 would monopolize the abstract idea across a wide range of applications.
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.
Focusing on what the inventors have invented exactly, it is considered that the “core” of pending claim 1 is directed to an abstract algorithm of determining whether to sound a note for each sound generation timing of the performance pattern based on the probability of each sound generation timing set in a predetermined or provided sound generation probability pattern. 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 2-18 inherit attributes of the independent claim 1, 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.
Claims 19 and 20 are treated as ineligible subject matter under 35 U.S.C. § 101 for the same reason as for claim 1 set forth above.
Claim Rejections - 35 USC § 102
6. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
7. Claims 1-7 and 12-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by KIJIMA (JP H02113296 A, machine translation).
Regarding claims 1, 19 and 20, KIJIMA discloses an automatic performance apparatus and a method for practicing the apparatus, including computer programs encoded on a storage device, which automatically performs a performance pattern (Abstract: e.g., the rhythm pattern or rhythm tap information inputted in the form of a beat probability value; see also Fig. 3 and related text) in which sound generation timings of notes to be sounded are set (pages 5-6: “it is an object of the present invention to provide an automatic performance device, particularly a rhythm generating device for playing percussion instrument sounds”), the automatic performance apparatus comprising: a sound generation probability pattern acquisition part which acquires a sound generation probability pattern in which a probability of sounding a note is set for each sound generation timing of the performance pattern (pages 2-3: “means for setting a probability value (d) of striking one or more instruments for each reference time”; see also claim 2: “means (16) for storing one or more basic patterns defined by the probability value (d), and selects one or more of the stored basic patterns to determine whether or not to strike each of the musical instruments”); and an automatic performance part which performs an automatic performance by determining whether to sound the note for each sound generation timing of the performance pattern based on the probability of each sound generation timing set in the sound generation probability pattern acquired by the sound generation probability pattern acquisition part (page 6: “means 6 for randomly determining whether or not to hit each of the musical instruments at each reference time in accordance with the probability value (d) given to each of the musical instruments. … [Operation] … an automatic performance device, particularly a rhythm generating device for playing percussion sounds, is provided with a mechanism for inputting rhythm tap information in the form of a probability value (d) of hitting, rather than simply definite information indicating whether to hit or not, and a mechanism for converting the input probability value (d) into definite information (d) of hitting or not using random numbers”).
Regarding claim 2, KIJIMA discloses: wherein in a case where a predetermined sound generation timing in the performance pattern is composed of a chord of a plurality of notes, the automatic performance part performs an automatic performance according to the performance pattern by determining whether to generate sound for each note composing the chord based on the probability of the sound generation timing set in the sound generation probability pattern acquired by the sound generation probability pattern acquisition part (page 5: “The "old DI signal" is made up of, for example, a "NOTE ON" or "NOTE OFF" signal indicating whether to start or stop sound output, and a signal indicating the pitch and intensity of the sound. In this rhythm generating device, by allocating the type of rhythm generating device (i.e., electronic percussion instrument) to the "pitch" of the above signals, the multiple instruments 1, 2, 3, . . . that make up the rhythm generating device can be generated. - can be selectively played”, i.e., the rhythm generator plays a different note pitch, hence when applied to any MIDI instrument, each note would be selectively emitted generating chords of probabilistically selected notes).
Regarding claims 3 and 13, KIJIMA discloses: an input part which inputs performance information (page 4: “the rhythmic bang of one repeat unit is inputted from the bang information input section 1a. The input rhythmic bell information is stored in the bell information storage unit 2”; page 6: “the rhythm pattern information of one repeat unit is input from the rhythm pattern information input unit 1,”); and a probability acquisition part which acquires a maximum-likelihood-estimated probability based on the performance information inputted to the input part (page 7: “the performance button generation unit 6 of the present invention generates a random number and generates performance confirmation information based on the six growth rate information stored in the button information storage unit 2. Specifically, if the probability value (d) is … the output value is set to 101”), wherein the sound generation probability pattern acquisition part acquires a sound generation probability pattern in which the probability acquired by the probability acquisition part is set as the probability of sounding the note at each sound generation timing of the performance pattern (page 7: “The output information creation unit 4 creates instrument drive information like the old DI signal described above based on the determined rhythm beat information generated by the performance beat generation unit 6, and sends it to the output unit 5”).
Regarding claim 4, KIJIMA discloses: an input pattern storage part which stores a plurality of input patterns (page 11: “Figure 3, so it can be seen that they result in similar rhythmic variations. In this embodiment, the user defines the rhythm pattern using a probability value (d), but it goes without saying that it is also possible to describe several typical rhythm patterns in advance in the form of probability values (d)” ); and an input pattern selection part which selects a maximum-likelihood-estimated input pattern from among the plurality of input patterns stored in the input pattern storage part based on the performance information inputted by the input part (page 11: “then determine the performance pattern based on the rhythm pattern selected by the user”), wherein the probability acquisition part acquires a probability corresponding to the input pattern selected by the input pattern selection part (page 7: “the performance button generation unit 6 of the present invention generates a random number and generates performance confirmation information based on the six growth rate information stored in the button information storage unit 2. Specifically, if the probability value (d) is … the output value is set to 101”; see also teaching about how the user sets rhythm clap information using the probability value on page 10).
Regarding claims 5 and 15, KIJIMA discloses: wherein the probability acquisition part acquires a probability having a value associated with the sound generation timing between notes of the input pattern selected by the input pattern selection part (see discussion of claims 1 and 4 above).
Regarding claims 6 and 16, KIJIMA discloses: a sound generation probability pattern storage part which stores a plurality of the sound generation probability patterns (claim 2: “means (16) for storing one or more basic patterns defined by the probability value (d), and selects one or more of the stored basic patterns to determine whether or not to strike each of the musical instruments”); and an input part which inputs performance information (page 4: “the rhythmic bang of one repeat unit is inputted from the bang information input section 1a. The input rhythmic bell information is stored in the bell information storage unit 2”; page 6: “the rhythm pattern information of one repeat unit is input from the rhythm pattern information input unit 1,”), wherein the sound generation probability pattern acquisition part acquires a maximum-likelihood- estimated sound generation probability pattern based on the performance information inputted to the input part from among the sound generation probability patterns stored in the sound generation probability pattern storage part (page 7: “the performance button generation unit 6 of the present invention generates a random number and generates performance confirmation information based on the six growth rate information stored in the button information storage unit 2. Specifically, if the probability value (d) is … the output value is set to 101”).
Regarding claims 7, 14 and 17, KIJIMA discloses: an input pattern storage part which stores a plurality of input patterns; and an input pattern selection part which selects a maximum-likelihood-estimated input pattern from among the plurality of input patterns stored in the input pattern storage part based on the performance information inputted to the input part, wherein the sound generation probability pattern acquisition part acquires a sound generation probability pattern corresponding to the input pattern selected by the input pattern selection part from among the sound generation probability patterns stored in the sound generation probability pattern storage part (see discussion of claim 4 above).
Regarding claim 12, KIJIMA discloses: wherein the input pattern selection part executes a selection process of the input pattern when performance information is inputted to the input part (page 7: “the performance button generation unit 6 of the present invention generates a random number and generates performance confirmation information based on the six growth rate information stored in the button information storage unit 2. Specifically, if the probability value (d) is … the output value is set to 101”; see also teaching about how the user sets rhythm clap information using the probability value on page 10).
Regarding claim 18, KIJIMA discloses: wherein the sound generation probability pattern acquisition part acquires a sound generation probability pattern created by a user (pages 11-12: “the user can set α (a value between 0 and 1), and when the above-described pre-described probability value (d) is smaller than 0.5 the probability value (d) is replaced with d × α, and when the probability value (d) is larger than 0.5, the probability value (d) is replaced with 1-(1-d) × α, thereby changing the degree of variation. …”).
Examiner’s Note
8. While there are related references that discuss techniques of automatically performing a performance pattern in which sound generation timings of notes to be sounded are set, the prior art of record does not specifically provide teachings for the limitations as recited in instant claims 8-11 including: a likelihood calculation part which calculates a likelihood for each of all or part of notes composing a plurality of input patterns stored in the input pattern storage part based on the performance information inputted to the input part, wherein the input pattern selection part maximum-likelihood-estimates one input pattern among the plurality of input patterns stored in the input pattern storage part based on the likelihood calculated by the likelihood calculation part. It is these limitations found in each of the claims 8-11, in combination with the rest of the limitations as recited in claims 1, 3 and 4, that have not been found, taught or suggested by the prior art of record, which make these claims distinguish over the prior art of record.
Contact Information
9. 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.
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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