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 and amendments filed 12/10/2025 have been fully considered but they are not persuasive.
Applicant states that the Office Action acknowledges that Kahn does not teach any type of game media metadata. The Examiner disagrees and notes this is a misrepresentation of what is stated in the Office Action. The Office Action states that Kahn fails to teach that the audiovisual content signal includes both game media content and media metadata corresponding to the game media content. Kahn discloses at Column 4, Lines 3-42 receiving game content to display to the user, which allows the user to play the game and additional software/media metadata in the form of behavioral assessments. The Office Action omits the claim limitation “both” which corresponds to the audiovisual signal including both the game media content and media metadata together. This was the purpose of providing the teaching reference Haltovsky, to teach that an audiovisual signal can include both the actual game media content and the media metadata (see ). Prior to the inclusion of the claim limitation “both”, the claims only required that the audiovisual signal being received and played include the actual game content being played and the media metadata, but did not exclude that the media metadata could be provided from the additional software as taught by Kahn. This requires Kahn to receive the media metadata from a different source instead of receiving the media metadata along with the game media content as a single package. Haltovsky discloses that game software can include various software modules that not only contain the game media content, but also includes various types of media metadata, one of which is a help menu that provides the user assistance in playing the game. Therefore, Haltovsky discloses that the audiovisual signal includes both the game media content and media metadata that also assists the user to play the game.
Applicant further argues that Haltovsky fails to teach physiologically observable states, however the Examiner disagrees and notes that not only does the Help Menu indicate game instructions that allow the user to select options that would assist them navigate through the game (the selected help option would represent the physiological observable state of the user by the user indicating the help that is needed), additional metadata is provided that represent a psychological observable state of the user.
Applicant argues that Kahn fails to teach detecting a divergence between an assessed physiologically observable state and an expected physiological observable state for a particular time interval of a game that is known in advance. The Examiner notes the claims does not indicate a specific time internal as indicated by Applicant’s statement of the time intervale being known in advance. Kahn discloses at Column 13, Lines 12-16 that assessed physiological data is collected and compared only during gameplay, therefore teaching that the divergence is determined during a time interval during gameplay. The claims do not require for this determination to be made in advance, as argued by Applicant.
Applicant further argues that Kahn would not have been motivated to augment the teachings of Kahn to include modifications using the features of Haltovsky. The Examiner has provided a Graham v. Deere analysis to show how one of ordinary skill in the art would be motivated to include the media metadata taught by Haltovsky (which teaches that the audiovisual signal includes both game media content and the media metadata) to the media metadata of Kahn. Motivation has been gleaned directly from the Haltovsky reference by teaching a crossover gaming platform that offers the merits of convention games, while adding digital features that enrich the game-playing experience, as well as provide practical conveniences, such as versatility and ease of storage (see Paragraph 0008 of Haltovsky). Haltovsky also teaches additional motivation in Paragraph 0110, which states that entire game terminal application package initializes all the application software modules, which results in managing seamless visual transition of game objects between the game terminals and the main game board screen.
In regards to Applicant’s argument that Kahn and Haltovsky would not yield all of the recitations of the independent claims, see the Examiner’s rebuttal above.
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 1-27 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,678,014 in view of Kahn, II et al. (U.S. Patent No. 11,130,064).
Referring to claims 1-21 of the instant application, see claims 1-15 of the ‘014 Patent. The Examiner further notes that Kahn teaches the divergence limitations added to the amended claims (see the updated rejection below).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention, to modify the game media content presentation system, as taught by the ‘525 Patent, using the biofeedback game media content presentation system, as taught by Kahn, for the purpose of providing an engaging medium for therapeutic gameplay (see Column 1, Lines 19-22 of Kahn).
Referring to claims 22-27 of the instant application, see claims 16-19 of the ‘014 Patent. The Examiner further notes that Kahn teaches the divergence limitations added to the amended claims (see the updated rejection below).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention, to modify the game media content presentation system, as taught by the ‘525 Patent, using the biofeedback game media content presentation system, as taught by Kahn, for the purpose of providing an engaging medium for therapeutic gameplay (see Column 1, Lines 19-22 of Kahn).
Claims 1-27 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11,477,525 in view of Kahn, II et al. (U.S. Patent No. 11,130,064).
Referring to claims 1-21 of the instant application, see claims 4-12 of the ‘525 Patent. The Examiner further notes that Kahn teaches the divergence limitations added to the amended claims (see the updated rejection below).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention, to modify the game media content presentation system, as taught by the ‘525 Patent, using the biofeedback game media content presentation system, as taught by Kahn, for the purpose of providing an engaging medium for therapeutic gameplay (see Column 1, Lines 19-22 of Kahn).
Referring to claims 22-27 of the instant application, see claims 4-12 and 18 of the ‘525 Patent.
The ‘525 Patent fails to teach game media content.
Kahn discloses a biofeedback game media content presentation system (see Column 4, Lines 3-42). The Examiner further notes that Kahn teaches the divergence limitations added to the amended claims (see the updated rejection below).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention, to modify the game media content presentation system, as taught by the ‘525 Patent, using the biofeedback game media content presentation system, as taught by Kahn, for the purpose of providing an engaging medium for therapeutic gameplay (see Column 1, Lines 19-22 of Kahn).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-11, 13-18, 20-24 and 26-27 are rejected under 35 U.S.C. 103 as being unpatentable over Kahn, II et al. (U.S. Patent No. 11,130,064) in view of Haltovsky et al. (U.S. Patent Application Publication 2010/0113148).
Referring to claim 1, Kahn discloses receiving an audiovisual content signal, including game media content and media metadata, wherein the media metadata comprises a plurality of metadata portions, each metadata portion corresponding to one or more expected physiologically observable states for a viewer of the game content when viewing a corresponding portions of the game media content (see Column 4, Lines 3-42 for receiving game content to display as well as behavioral assessment data (plural) and Column 6, Line 53 through Column 7, Line 20 for the physiologically observable states corresponding to a viewer of the game content while viewing/playing the game media content).
Kahn also discloses determining, with respect to a viewer of the game media content, one or more assessed physiologically observable states relating to the one or more portions of the game media content (see steps 430-440 in Figure 4 and Column 13, Lines 5-28).
Kahn also discloses detecting a divergence between one of the one or more assessed physiologically observable states and one of the one or more expected physiological observable states indicated by a metadata portion (see Column 13, Lines 42-46 for comparing an assessed physiologically observable state (the sensor data) and an expected physiologically observable state (the threshold or window for normal, expected variations) to determine a divergence), the divergence occurring during a time interval corresponding to a portion of the game media content and the metadata portion (see Column 13, Lines 12-16 for the assessed physiological data being collected and compared only during gameplay, therefore teaching that the divergence is determined during a time interval during gameplay (the Examiner further notes that multiple changes/divergences in physiological data is determined) which results in changing the gameplay to assist the user).
Kahn also discloses generating and rendering, based at least in part on the divergence, modified game media content from the game media content, the modified game media content corresponding to the portion of the game media content (see Column 13, Line 38 through Column 14, Line 31 for generating and rendering effects used to modify the game content based on the observed physiologically observable states and further note the Examiner explanation for determined divergences/changes during gameplay and further note Column 14, Lines 49-67).
Kahn also discloses presenting the modified game media content to the viewer (see Figure 3 and Column 9, Line 35 through Column 10, Line 39).
Kahn fails to teach that the audiovisual content signal includes both game media content and media metadata corresponding to the game media content.
Haltovsky discloses an audiovisual content signal includes both game media content and media metadata corresponding to the game media content (see Paragraphs 0107-0110 for a game board application including both game media content and media metadata corresponding to the game media content in the form of game help information, which represents expected physiologically observable states for the game player in the form of reducing the game players frustration with playing a game with no help).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention, to modify the game difficulty adjust system, as taught by Kahn, to include game help information that is packaged with the game media content, as taught by Haltovsky, for the purpose of providing a crossover gaming platform that offers the merits of conventional games, while adding digital features that enrich the game-playing experience, as well as provide practical conveniences, such as versatility and east of storage (see Paragraph 0008 of Haltovsky).
Referring to claim 2, Kahn discloses that one or more expected physiologically observable states relate to emotion expectations for the viewer when the viewing the one or more portions of the game media content (see Column 4, Lines 22-42 and Column 6, Line 53 through Column 7, Line 20 for the physiologically observable states corresponding to a viewer of the game content while viewing/playing the game media content), the emotion expectations being expectations of one or more content creators of audiovisual content provided by the audiovisual content signal (see Column 6, Line 67 through Column 7, Line 3 for the system being designed to alert the user 201 of the change in emotional state so that the user 201, rather than continue in a state of dysregulation, may take remedial action to return to a state of emotional regulation, therefore the emotional expectations being expectations of a content creator/game designer of the audiovisual content/game).
Referring to claim 3, Kahn discloses that the one or more expected physiologically observable states relate to narrative information corresponding to one or more portions of the game media content (see Column 15, Lines 8-11 for customizing the game experience based on a history of a person’s responses and remediation, therefore using information that is narrative in nature by the person’s responses and remediation being representative of narrative information).
Referring to claim 4, Kahn discloses obtaining one or more physiological monitoring signals from the viewer of the game media content, wherein determining the one or more assessed physiologically observable states is based, at least in part, on one or more physiological monitoring signals (see Column 1, Lines 42-58).
Referring to claim 5, Kahn discloses that the one or more assessed physiologically observable states comprise an assessed emotional state of the viewer and wherein the one or more expected physiologically observable states comprise an expected emotional state of the viewer (see the rejection of claim 1 for determining expected and assessed physiological states and Column 4, Lines 33-42 for the physiological data determination being representative of emotional states of the user, both determined/assessed and stored/expected emotional states).
Referring to claim 6, Kahn discloses that the assessed emotional state and the expected emotional state correspond to at least one of arousal or valence (see Column 6, Line 53 through Column 7, Line 20).
Referring to claim 7, Kahn discloses that the one or more assessed physiologically observable states comprise an assessed narrative state of the viewer and wherein the one or more expected physiologically observable states comprise an expected narrative state of the viewer (see Column 15, Lines 8-11 for determining a user’s history of responses which provides a narrative of the user’s actions).
Referring to claim 8, Kahn discloses that the expected narrative state and the assessed narrative state correspond to one or more of stress, cognitive load or attention locus ((see Column 6, Line 53 through Column 7, Line 20).
Referring to claim 9, Kahn discloses that the one or more physiologically observable states comprise an assessed attention locus of the viewer and wherein the one or more expected physiologically observable states comprise an expected attention locus of the viewer (see Column 11, Lines 25-41).
Referring to claim 10, Kahn discloses that the media metadata comprises one or more modification options for modifying the one or more portions of the game media content in response to detecting a divergence between the one or more physiologically observable states and the one or more expected physiologically observable states (see Column 12, Lines 19-38).
Referring to claim 11, Kahn discloses that at least one modification of the one or more modification options comprises instructions for implementing a game media content modification involving one or more regions of interest (see Column 9, Line 54 through Column 10, Line 11).
Referring to claim 13, Kahn discloses that at least one modification of the one or more modification options comprises instructions for implementing an attention steering modification and wherein the attention steering modification involves steering the viewer’s attention locus towards an area of interest of the game media content, towards a region of interest of the game media content, away from an area of interest of the game media content, or away from a region of interest of the game media content (see Column 12, Line 58 through Column 13, Line 4 for leading the user based on the user’s assessed and expected physiological states by adjusting the difficulty or type of game presented to the viewer).
Referring to claim 14, Kahn discloses that at least one modification of the one or more modification options comprises instructions for implementing a game media content modification involving one or more of: one or more visual characteristics of a sequence of rendered images (see Column 9, Line 54 through Column 10, Line 11).
Referring to claim 15, Kahn discloses that the one or more modification options are used to minimize the divergence between the one or more assessed physiologically observable states and the one or more expected physiologically observable states, with respect to the viewer, in content playback of the game media content (see Column 9, Line 54 through Column 10, Line 11).
Referring to claim 16, Khan discloses that the one or more physiological monitoring signals are obtained from one or more of: display-based sensors (see Column 13, Lines 5-28).
Referring to claim 17, Kahn discloses that the one or more signal modification options are generated based at least in part on playback device characterization data, rendering environment characterization data, or a combination thereof (see Column 9, Line 54 through Column 10, Line 11).
Referring to claim 18, Kahn discloses that the one or more assessed physiologically observable states correspond to an estimation of the viewer’s cognitive load, further comprising selecting one or more modification options based, at least in part, on the estimation of the viewer’s cognitive load (see Column 12, Lines 19-30).
Referring to claim 20, Kahn discloses that the one or more assessed physiologically observable states correspond to an estimation of the viewer’s understanding of the game media content, further comprising determining whether to implement the one or more modification options based, at least in part, on the estimation of the viewer’s understanding (see Column 12, Line 58 through Column 13, Line 4).
Referring to claim 21, Kahn also discloses determining, with respect to one or more additional viewers of the game media content, one or more assessed physiologically observable states relating to the one or more portions of the game media content (see feedback look 245 in Figure 2 and Column 19-34).
Kahn also discloses generating and rendering, based at least in part on the one or more expected physiologically observable states and the one or more assessed physiologically observable states, modified game media content from the game media content (see Figure 3 and Column 9, Line 35 through Column 10, Line 39).
Kahn also discloses presenting the modified game media content to the one or more additional viewers (see Figure 3 and Column 9, Line 35 through Column 10, Line 39).
Referring to claims 22-24 and 26-27, see the rejection of claims 1, 10, 18 and 20-21, respectively.
Claims 12, 19 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Kahn, II et al. (U.S. Patent No. 11,130,064) in view of Haltovsky et al. (U.S. Patent Application Publication 2010/0113148).
Referring to claim 12, Kahn and Haltovsky disclose all of the limitations of claim 10, but fail to teach that at least one modification of the one or more modification options comprises instructions for implementing an image steering modification and wherein the image steering modification involves steering images to follow the viewer’s movements from room to room.
The Examine takes Official Notice that game systems include image steering modification techniques during gameplay.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention, to modify the game media content presentation system, as taught by Kahn and Haltovsky, using the image steering modification functionality, as taught by the Examiner’s statement of Official Notice, for the purpose of adjusting or pausing game content while the users is going to the bathroom or performing another task in the middle of gameplay so the user can return to a game position that the user was previously playing.
Referring to claim 19, Kahn and Haltovsky disclose all of the limitations of claim 18, but fail to teach that the estimation of the viewer’s cognitive load comprises an estimation of the viewer’s confusion index.
The Examine takes Official Notice that a game system can provide an estimation of the viewer’s cognitive load comprises an estimation of the viewer’s confusion index.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention, to modify the game media content presentation system, as taught by Kahn and Haltovsky, using the confusion index estimation functionality, as taught by the Examiner’s statement of Official Notice, for the purpose of adjust or game content to provide game content that the user can have a better understanding of the game while playing.
Referring to claim 25, see the rejection of claim 19.
Conclusion
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 nonprovisional extension fee (37 CFR 1.17(a)) 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON P SALCE whose telephone number is (571)272-7301. The examiner can normally be reached 5:30am-10:00pm M-F (Flex Schedule).
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, Nathan Flynn can be reached at 571-272-1915. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Jason Salce/Senior Examiner, Art Unit 2421
Jason P Salce
Senior Examiner
Art Unit 2421
March 9, 2026