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 .
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,387,107. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are generally broader than the patented claims which additionally incorporate plurality of audio layers in a song.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 11,600,370. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are generally broader than the patented claims which additionally incorporate plurality of audio layers in a song.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,901,062. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are generally broader than the patented claims which additionally incorporate plurality of audio layers in a song.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 11,145,284. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the patent and the instant application are similarly directed toward playing different segments within a song based on user activity level.
Claim Objections
Applicant is advised that should claim 13 be found allowable, claim 14 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-10, and 15-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claims 1 and 16 contain subject matter, specifically regarding “shortest pathway duration” which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The specification lacks any description of what it means to have the shortest pathway duration. For example, [61] (and similarly in [69] and [89]) merely discloses, without mentioning a shortest pathway: “At 750 a first pathway is selected from the plurality of audible pathways and at 755 the first pathway is audibly provided to the user to transition to playback of the candidate transition segment of the song.”
Claims 1 and 15 are also rejected as the specification does not disclose “for each of the pathway of the plurality of pathways, determining, based on a duration of the one or more segments of the song associated with the pathway, a pathway score”. In [61], the specification mentions each of the plurality of audible pathways is scored, without explicitly detail how the score is based on the duration of the segments. Specifics of the plurality of audible pathways, such as how they are related to the one or more segments of the song is also not disclosed.
Other dependent claims 2-10 and 16-20 are rejected as they are dependent on the rejected claims.
Claim Rejections - 35 USC § 102
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)(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.
Claims 11-14 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Lalonde (US 2014/0354434).
Claim 11
Lalonde teaches a system comprising: a computing device, wherein the computing device further comprises memory storing computer readable instructions that, when executed, cause the computing device to:
initiate playback of a song ([0093], an audio track that is played back by the media modification unit 14);
determine, based on receiving physical activity information derived from sensor data, an activity level of a user ([0093], the media modification unit 14 receives a command indicative that the user reached a target performance. Abstract: an evaluation unit for receiving a measured performance of a user while performing a physical activity from a performance sensor,);
determine, based on the activity level of the user, a next segment of the song to transition to from the current segment ([0095] In one embodiment, the media modification unit 14 is adapted to repeatedly playback a given media segment, region, or clip until a command is received. Upon reception of the command, the media modification unit 14 stops playing back the given media segment and moves the playback of the audio track to the target playback position. The target playback position may be the beginning of the next media segment, region, or clip for example.); and,
output, to a display device, a visualization of a determined activity level of the user and the next segment of the song to transition to from the current segment (0072] In one embodiment, a reference signal is provided to the user to help him reach and maintain the target performance. A characteristic of the reference signal is then varied to reflect the change in the performance target. [0073] For example, the reference signal may be a visual signal provided by a display unit; [0074] In another embodiment, the reference signal may be an audio signal provided to the user. For example, the audio reference signal may be a metronome, a rhythm, a music, a pulse sound, or the like, of which a characteristic is changed at a rate that corresponds to the time-varying target performance to be reached by the user. Examiner notes specification does not explicitly disclose outputting, to a display device the next segment of the song to transition to from the current segment.).
Claim 12
Lalonde teaches the system of claim 11, wherein the instructions, when executed by the computer device, further cause the system to: determine a type of the sensor; and determine, based on the determined type of the sensor, whether to determine the activity level based on a heart rate, pace, or speed of the user during a physical activity ([0058] In one embodiment, the performance sensor 16 is adapted to measure the frequency of a body motion or movement while the user is performing a physical activity. [0059] In another embodiment, the performance sensor is adapted to measure a pace or a speed of the user. [0061] In one embodiment, the performance sensor may comprise a Global Positioning System (GPS), an accelerometer, a gyroscope, an odometer, a piezometer, a light sensor, a video sensor, and/or the like for measuring the user performance.).
Claim 13
Lalonde teaches the system of claim 11, wherein the memory storing computer readable instructions, when executed, further cause the computing device to: determine, based on performing a sonic analysis of each segment of a plurality of segments of a song, values for a plurality of sonic characteristics associated with each segment ([0113] In an embodiment in which the media to be modified comprises at least one audio track, the media modification unit 14 is adapted to modify a characteristic of the audio signal to be provided to the user and/or apply an audio effect to the audio signal, upon reception of the command indicative that the performance threshold has been reached. For example, the media modification unit 14 may be adapted to modify or add at least one of the volume, echo, flanger, chorus, equalization, audio filtering, overdrive, pitch shift, time stretching, pitch, saturation such as low frequency saturation, and/or the like.).
Claim 14
Lalonde teaches the system of claim 11, wherein the memory storing computer readable instructions, when executed, further cause the computing device to: determine, based on performing a sonic analysis of each segment of a plurality of segments of a song, values for a plurality of sonic characteristics associated with each segment ([0113] In an embodiment in which the media to be modified comprises at least one audio track, the media modification unit 14 is adapted to modify a characteristic of the audio signal to be provided to the user and/or apply an audio effect to the audio signal, upon reception of the command indicative that the performance threshold has been reached. For example, the media modification unit 14 may be adapted to modify or add at least one of the volume, echo, flanger, chorus, equalization, audio filtering, overdrive, pitch shift, time stretching, pitch, saturation such as low frequency saturation, and/or the like.).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS H MAUNG whose telephone number is (571)270-5690. The examiner can normally be reached Monday-Friday, 9am-6pm, EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Carolyn R. Edwards can be reached on 1-(571) 270-7136. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THOMAS H MAUNG/Primary Examiner, Art Unit 2692
/CAROLYN R EDWARDS/Supervisory Patent Examiner, Art Unit 2692