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 Amendment
Receipt is acknowledged of applicants preliminary amendment filed March 14, 2025. Claims 1-3 are pending and an action on the merits is as follows.
Claim Objections
Claims 1 and 2 are objected to because the following elements lack proper antecedent basis in the claim(s):
Claim 1 and 2 line 1: “the energy level”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(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.
Claims 1-3 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 includes the limitation “database having a same family tag as said tag of said selected audio loop”. However there is a lack of antecedent basis for “said tag”. It is unclear whether applicants intend to reference a loudness tag, an instrument tag, or another tag. For examining purposes, this limitation is interpreted as stating “database having a same family tag as said selected audio loop”.
This claim further includes the limitation “said identified any audio loops, if any, together comprising members of a family”. However the phrase “if any” renders the claim indefinite. It is unclear whether the claim necessarily requires any audio loops to be identified to comprise members of a family. For examining purposes, this limitation is interpreted as stating “said identified any audio loops comprising members of a family”.
Claim 1 further includes the limitation “identifying said one or more family member loops of said selected audio loop”. However there is a lack of antecedent basis for “said one or more family member loops”. The claim describes audio loops to have members of a family, and therefore a family member is a parameter or characteristic of an audio loop. It is unclear then how a family member can be an audio loop. For examining purposes, this limitation is interpreted as stating “identifying one or more loops of said selected audio loop having said family member(s)”.
Additionally, this claim includes limitations pertaining to “said (identified) (selected) family member loops”. As shown above, it is unclear how a family member can be an audio loop since it is described as a parameter or characteristic of an audio loop. For examining purposes, these limitation are interpreted as pertaining to “said (identified) (selected) loops having said family member(s)”.
Claim 2 includes the limitation “from said audio loop database near said only one supplemental loop that has been added, and”. The claim describes a scenario (c) in which a first and second supplemental loop is added to the selected song part, however this limitation is described as part of an alternative scenario (d) when the conditions of scenario (c) are not met. It is therefore unclear whether the claim necessarily requires the first or second supplemental loop to be added from scenario (c) in order to fulfil scenario (d). For examining purposes, this limitation is interpreted as stating “from said audio loop database, and”.
Claim 3 depends from claim 2 and therefore inherits all claimed limitations. This claim does not correct the deficiencies of claim 2.
Allowable Subject Matter
Claims 1-3 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
Claim 1: Although the prior art (US 2017/0031650 A1) teaches a method of automatically increasing (transition) an energy level in a music work (song) comprised of a plurality of song parts (segments) (page 10 paragraph [0093]), each having at least a loudness tag, a family association (timbre) (page 9 paragraph [0081]), and an instrument tag associated therewith, and wherein is provided an audio database comprised of a plurality of song parts (segments) (page 1 paragraph [0008]), each of said database song parts having at least a loudness tag, a family tag, and an instrument tag associated therewith, comprising the steps of: (a) selecting a first or next one of said music work plurality of song parts in the music work (pages 8-9 (Paragraph [0076]);(c) identifying a song part in the database having a same family tag (song state) as said selected song part, said identified song part comprising members of a family of said selected song part;(d1) identifying one or more song parts having said family member(s) if a number of said family members of said selected song part in said family is one or more (page 11 paragraph [0146]), (d2) reading a loudness tag value associated with each of said identified song parts having family member(s) (page 12 paragraph [0166]), (d4) calculating a current energy value of said selected song part (page 9 paragraph [0082]), (d5) determining a desired energy value of said selected song part, (d6) selecting a replacement song part from among said song parts having said family member(s) (page 10 paragraph [0093]) having a loudness tag value commensurate with said desired energy value of said selected song part (page 7 paragraph [0061]), and (d7) replacing in said selected song part said selected audio loop with said selected replacement loop (page 10 paragraph [0093]); the prior art does not teach nor suggest each of said plurality of song parts to contain two or more audio loops, the database to be an audio loop database comprised of a plurality of database audio loops, the steps above to be applied to the audio loops instead of the song part, step (b): a first or next one of said two or more audio loops of said selected song part to be selected, step (d3): said identified selected loop having said family member(s) to be selected by said read loudness tag values, step (e): if a number of said family members of said selected audio loop in said family is zero,(e2) to determine in said audio database five nearest neighbor audio loops of said selected audio loop, (e3) to identify a loudness tag associated with each of said five nearest neighbor audio loops,(e4) to sort said five nearest neighbor audio loops based on said identified loudness tags associated therewith,(e7) to select a replacement audio loop from among said five nearest neighbor audio loops having a loudness tag value commensurate with said desired energy value of said selected song part, and (e8) to replace in said selected song part said selected audio loop with said selected replacement audio loop;(f) to performing either step (c) or step (d) or step (e) for each of said two or more audio loops of said selected song part; and (g) to performing at least steps (b) through (e) (f)for each of said song parts in said music work. The combinations of the claimed limitations are novel and found to be allowable over prior art. The cited references taken singly or in combination do not anticipate nor make obvious applicant's claimed invention.
Claim 2: Although the prior art (US 2017/0031650 A1) teaches a method of automatically increasing (transition) an energy level in a music work (song) comprised of a plurality of song parts (segments) (page 10 paragraph [0093]), each having at least a loudness tag, a family association (timbre) (page 9 paragraph [0081]), and an instrument tag associated therewith, and wherein is provided an audio database comprised of a plurality of song parts (segments) (page 1 paragraph [0008]), each of said database song parts having at least a loudness tag, a family tag, and an instrument tag associated therewith, comprising the steps of: (a) selecting a first or next one of said music work plurality of song parts in the music work (pages 8-9 (Paragraph [0076]); (b) determining a number of instruments associated with said selected song part; using said instrument tags associated with each of said two or more audio loops to determine a loop instrument type for each of said two or more audio loops (page 1 paragraph [0008]), the prior art does not teach nor suggest each of said plurality of song parts to contain two or more audio loops, the database to be an audio loop database comprised of a plurality of database audio loops, step (c1) to use said instrument tags to determine a loop instrument type for each of said two or more audio loops only if said number of instruments is less than six, (c2) to select according to an ordered list two instrument types different from any of said loop instrument types associated with said two or more loops, step (c3) for a first of said two selected instrument types, to select a first instrument loop from said audio loop database having a same instrument type as said first of said two selected instrument types,(c4a) to use a nearest neighbor algorithm to select a plurality of candidate loops from said audio loop database near said selected first instrument loop if said first instrument loop has no family members,(c4b) to select as a first supplemental loop a most energetic loop among said selected plurality of candidate loops, and (c4c) to add said first supplemental loop to said selected song part, (c5a) to use a nearest neighbor algorithm to select a plurality of candidate loops from said audio loop database near said selected first instrument loop if said first instrument loop has one or two family members, and (c5b) to select as said first supplemental loop a most energetic loop among said selected plurality of candidate loops and said first instrument loop family members, (c5c) to add said first supplemental loop to said selected song part, (c6a) to select as said first supplemental loop a most energetic loop among said three or more family members if said first instrument loop has three or more family members, and (c6b) to add said first supplemental loop to said selected song part and to repeat said steps for a second of said two selected instrument types, step (dl) to use a nearest neighbor algorithm to select a plurality of candidate loops from said audio loop database if said first supplemental loop or said second supplemental loop was not added to said selected song part, and(d2) to replace all of said audio loops associated with said selected song part with a same number of most energetic loops from said selected plurality of candidate loops; and (e) to perform at least steps (a) through (d) for each of said plurality of song parts associated with said music work, thereby increasing said energy level of said music work. The combinations of the claimed limitations are novel and found to be allowable over prior art. The cited references taken singly or in combination do not anticipate nor make obvious applicant's claimed invention.
Claim 3 depend from claim 1 and therefore inherit all allowed claim limitations.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2 and 7 of U.S. Patent No. 11,615,138 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because any limitation missing from the U.S. Patent is disclosed in its specification.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 7,642,444 B2, US 7,812,240 B2, US 12,347,409 B1 pertaining to selecting and using musical segments to change an energy of a music work according to tags.
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/Christopher Uhlir/Primary Examiner, Art Unit 3619 January 23, 2026