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
All pending claims 22-44 filed August 6, 2025 are examined in this final office action necessitated by amendment.
Response to Arguments
35 USC 101-Subject Matter Eligibility
Claims 22-27 and 42-44 are withdrawn necessitated by amendment. The amendment to independent claim 22 under Step 2B adds significantly more to the judicial exception- detecting sound waves with a microphone and confirming, via the processor, that the performer has fulfilled the user request during the live event based on the detected sound waves.
Claims 28-41 remain rejected under 35 USC 101. Independent claim 40 executes methods that are directed to abstract ideas comprising processes that can be executed by a human while following a procedure that organizes human activity related to commercial interactions using conventional computing elements.
No evidence of an improvement to the functioning of a computer, or to any other technology or technical field.
No evidence exists in the instant specification or claims of a particular machine.
No evidence exists of a transformation or reduction of a particular article to a different state or thing.
The claim does not go beyond generally linking the use of the judicial exception to a particular technological environment, e.g. processor, device.
Claim 40 does not recite additional elements that amount to inventive concepts that are “significantly more” than the recited judicial exception. Spatio-temporal relates to space and time. As claimed, the Applicant’s spatio-temporal confirmation indicates a live performance is occurring now and at what location, e.g. venue. This information can be conveyed in text or in speech. See below for more details.
35 USC 102
Applicant’s arguments, see remarks filed August 6, 2025 with respect to the rejection(s) of claims 22-27 and 42-44 under 35 USC 102, have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made necessitated by amendment. Emmerson would have taught Miller the use of a mobile device, e.g. smartphone, microphone to detect ambient sound waves emanating from a source, e.g. portable radio tuned to a radio station. In Miller-Emerson, the captured ambient sound waves are recognized as a song and tracked. Please see the rationale to combine Emerson with Miller (who teaches spatio-temporal confirmation) and the rationale to modify Miller-Emerson regarding confirmation of a song request fulfillment based upon the detected sound waves.
Applicant's arguments, see remarks filed August 6, 2025 with respect to the rejection(s) of claims 28-41 under 35 USC 102, have been fully considered but they are not persuasive. Miller discloses spatio-temporal confirmation based upon the location of the event.
In Miller:
[Miller: 0192] FIG. 63 depicts a Requests GUI 6999 that is similar to Requests GUI 5999 in FIG. 61. In this regard, Requests pushbutton 6996 shows the songs 6994 requested by listener(s), and the Played pushbutton 6995 shows the songs that have not yet been played 6991 or begun 6992. Once the checkmark 5995 is selected, the music live application 216 displays a Done oval 5998 and a timer indicating the amount of time the song has been playing 6990.
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.
Claim 22-27 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 16, 21 and 22 of Herring et al., US 11,823,150, in view of Emerson, III, US 20140195028.
Rejected claim 22.
Claim 1 represents independent claim 11.
A computer-implemented method of remotely influencing a performer at a live event via a mobile device of a user, the mobile device comprising a display, a memory and a processor, wherein software has been preloaded onto the memory of the mobile device that, when executed by the processor, causes the processor to perform the method, the method comprising:
A computer-implemented method of remotely influencing a performer at a live event via a customer mobile device of a user, the mobile device comprising a display, a memory and a processor, wherein software has been preloaded onto the memory of the mobile device that, when executed by the processor, causes the processor to perform the method, the method comprising:
displaying, via the display, a graphical user interface configured to receive user inputs;
1. displaying, via the display, a graphical user interface configured to receive user inputs;
receiving, via the graphical user interface, a first user input comprising a user request for the performer to take a user-specified action during the live event at the live event; and
1. receiving, via the graphical user interface, a first user input comprising a user request for the performer at the live event, wherein the user request is a request for the performer to take a user-specified action during the live event;
transmitting, via the processor, the user request for receipt by a performer mobile device of the performer during the live event
upon receipt of a user acceptance of a term associated with the user request.
1. the user request for receipt by a performer mobile device of the performer during the live event,
1. receiving, via the graphical user interface, a second user input comprising a user acceptance of the terms and conditions associated with the user request;
Amendment:
detecting, via a microphone, sound waves; and
confirming, via the processor, that the performer has fulfilled the user request during the live event based on the detected sound waves.
See Miller-Emerson below under 103 for teachings and rationale to combine Emerson with Miller:
Emerson: paragraphs [0013, 0015, 0028, 0108-0110, 0192] and rationale to combine with Miller replaces Miller with Herring.
Claim 28-41 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 16, 21 and 22 of Herring et al., US 11,823,150, in view of Miller et al., US 2020/0320442 “Miller.”
Rejected claim 40 represents independent claims 28 and 34.
Claim 1 represents independent claims 16, 21 and 22.
40. (Currently Amended) A computer-implemented method of remotely influencing a performer at a live event via a mobile device of a user, the mobile device comprising a display, a memory and a processor, wherein software has been preloaded onto the memory of the mobile device that, when executed by the processor, causes the processor to perform the method, the method comprising:
1. A computer-implemented method of remotely influencing a performer at a live event via a customer device comprising a display, a processor, and a memory configured to store an application that, when executed by the processor, causes the processor to perform the method, the method comprising:
displaying, via the display, a graphical user interface configured to receive user inputs;
1. displaying, via the display, a graphical user interface configured to receive user inputs;
receiving, via the graphical user interface, a first user input comprising a user request for the performer at the live event, wherein the user request is a request for the performer to take a user-specified action during the live event;
1. receiving, via the graphical user interface, a first user input comprising a user request for the performer to take a user-specified action during the live event;
transmitting, via the processor, the user request for receipt by a performer mobile device of the performer during the live event upon receipt of a user acceptance of a condition associated with the user request; and
1. transmitting, via the processor, the user request to a performer device associated with the live performer upon the processor receiving the user acceptance of the terms and conditions associated with the user request.
Amendment:
determining, via the processor, a location of the live event;
performing, via the processor, a spatio-temporal confirmation based on the determined location of the live event; and
fulfilling, via the processor, a term associated with the user request based on the spatio- temporal confirmation.
See Miller below under 102 for teachings applied to these steps:
Paragraphs [0122], [0130], [0138-0140] and [0143 including examiner’s notes]
Claim Rejections - 35 USC § 101
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 28-41 are rejected under 35 USC 101 because the claimed invention is directed to an abstract idea without adding significantly more.
When considering subject matter eligibility under 35 U.S.C. 101, it must be determined whether the claim is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter. If the claim does fall within one of the statutory categories, it must then be determined whether the claim is directed to a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea), and if so, it must additionally be determined whether the claim is a patent-eligible application of the exception. If an abstract idea is present in the claim, any element or combination of elements in the claim must be sufficient to ensure that the claim amounts to either a practical application of the abstract idea or significantly more than the abstract idea itself. Groupings of abstract ideas include: Mathematical Concepts, Mental Processes and Certain Methods of Organizing Human Activity.
Certain Methods of Organizing Human Activity include:
Fundamental economic principles or practices,
Commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations), and
Managing personal behavior or relationships or interaction between people (including social activities, teaching and following rules or instructions).
Mathematical Concepts
Mathematical relationships
Mathematical formulas
Mathematical calculations
Mental Processes
Concepts performed in the human mind (including an observation, evaluation, judgement, opinion)
Step 1
In the instant case, claim 40 is directed to a process. Analysis of claim 40 applies to analysis of claims 28-39 and 41.
Step 2A Revised (First Prong)
Determine whether claim 40 is directed to a judicial exception. Elements of an abstract idea are underlined. See Analysis.
Step 2A Revised (Second Prong)
Determine whether claim 40 has additional elements (in italics) integrated into a practical application:
a) requires an additional element or a combination of elements in the claim to apply, rely on, or use the judicial exception in a manger that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the exception; and
b) uses the considerations laid out by the Supreme Court and the Federal Circuit to evaluate whether the judicial exception is integrated into a practical application.
See Analysis.
Step 2B (Revised)
In Step 2B, evaluate whether claim 40 recites additional elements that amount to an inventive concept that adds significantly more than the recited judicial exception.
Analysis
In Claim 40:
(Currently Amended) A computer-implemented method of remotely influencing a performer at a live event via a mobile device of a user, the mobile device comprising a display, a memory and a processor, wherein software has been preloaded onto the memory of the mobile device that, when executed by the processor, causes the processor to perform the method, the method comprising:
displaying, via the display, a graphical user interface configured to receive user inputs;
receiving, via the graphical user interface, a first user input comprising a user request for the performer at the live event, wherein the user request is a request for the performer to take a user-specified action during the live event;
transmitting, via the processor, the user request for receipt by a performer mobile device of the performer during the live event upon receipt of a user acceptance of a condition associated with the user request; and
determining, via the processor, a location of the live event;
performing, via the processor, a spatio-temporal confirmation based on the determined location of the live event; and
fulfilling, via the processor, a term associated with the user request based on the spatio-temporal confirmation.
Claim 40 executes methods that are directed to abstract ideas comprising processes that can be executed by a human while following a procedure that organizes human activity related to commercial interactions using conventional computing elements.
No evidence of an improvement to the functioning of a computer, or to any other technology or technical field.
No evidence exists in the instant specification or claims of a particular machine.
No evidence exists of a transformation or reduction of a particular article to a different state or thing.
The claim does not go beyond generally linking the use of the judicial exception to a particular technological environment, e.g. processor, device.
Claim 40 does not recite additional elements that amount to inventive concepts that are “significantly more” than the recited judicial exception. Spatio-temporal relates to space and time. As claimed, the Applicant’s spatio-temporal confirmation relates to the live performance is now on and at what location, e.g. venue. This information can be conveyed in text or in speech.
Claim 40 relies on conventional computer processing functions (sending/ receiving data, formatting data, storing data, retrieving data, manipulating data, calculating, searching data, displaying data, organizing data) that courts have routinely found insignificant to transform an abstract idea into a patent-eligible invention. See Alice, 134 S. Ct. at 2360. As such, the claims amount to nothing significantly more than an instruction to implement the abstract idea across a generic computer network which is not enough to transform an abstract idea into a patent-eligible invention.
The elements of the instant method steps do not offer substantially more than the sum of the functions of the steps when each is taken alone. That is, the steps involved in the recited process undertake their roles in performance of their activities according to their generic functionalities which are well-understood, routine and conventional. The elements together execute in routinely and conventionally accepted coordinated manners and interact with their partner elements to achieve an overall outcome which, similarly, is merely the combined and coordinated execution of generic computer functionalities which are well-understood, routine and conventional activities previously known to the industry.
The elements of the instant process, when taken in combination, together do not offer substantially more than the sum of the functions of the steps when each is taken alone. That is, the steps involved in the recited process undertake their roles in performance of their activities according to their generic functionalities which are well-understood, routine and conventional. The elements together execute in routinely and conventionally accepted coordinated manners and interact with their partner elements to achieve an overall outcome which, similarly, is merely the combined and coordinated execution of generic computer functionalities which are well-understood, routine and conventional activities previously known to the industry.
Conclusion
Accordingly, the examiner concludes that there are no meaningful limitations in claims 28-41 that transform the judicial exception into a patent eligible application such that the claims amount to significantly more than the judicial exception itself.
Claim Rejections - 35 USC § 103
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 22-27 and 42-44 are rejected under 35 USC 103 as being unpatentable over Miller et al., US 2020/0320442 “Miller,” in view of Emerson, III, US 2014/0195028 “Emerson.”
In Miller see at least (underlined text is for emphasis):
Regarding claim 22: (Currently Amended) A computer-implemented method of remotely influencing a performer at a live event via a mobile device of a user, the mobile device comprising a display, a memory and a processor, wherein software has been preloaded onto the memory of the mobile device that, when executed by the processor, causes the processor to perform the method, the method comprising:
[Miller: 0002] Many people frequent bars or other entertainment venues to watch bands perform live music. Often, the individuals in the audience participate in selecting what music is played by the artists. In this regard, an individual in the audience can walk to the stage, ask the artist to play a song, and provide a sum of money to the artists to play the song requested as a tip. A second individual may approach the stage on which the band is performing and offer another sum of money to the artists to play a different song. This second individual may pay a premium to the artist to get their song request played before other songs that have been requested.
[Miller: 0003] Also, some bands who perform live at these bars or other entertainment venues perform only for the tips they receive from the audience. Thus, frequently, a container, e.g., a hat or a bucket, is passed around the audience in the bar or other entertainment venues. If individuals in the audience want to tip the artists in the band performing the individuals in the audience place money in the container.
[Miller: 0074] FIG. 1A is a block diagram of an exemplary system 100 for digitally interacting with live musicians to facilitate tipping, song requests, and live bidding in accordance with an embodiment of the present disclosure. The system 100 comprises a plurality of mobile devices 103-105, an internal server 101 and a payment server 106. The mobile devices 103-105 and the servers 101 and 106 communicate via a network 102.
[Miller: 0079] In operation, a user (not shown) of the mobile device 103 may request software, the app, to be downloaded to their mobile device 103. The mobile device 103 transmits data requesting the download to the internal server 101, and the internal server 101 transfers data indicative of the app to the mobile phone 103. Likewise, a user (not shown) of the mobile device 104 may request the app to be downloaded to their mobile device 104. Therefore, the mobile device 104 transmits data requesting the download to the internal server 101, and the internal server 101 transfers data indicative of the app to the mobile phone 104.
displaying, via the display, a graphical user interface configured to receive user inputs;
[Miller: Fig. 9: 0015] FIG. 9 is an exemplary Request a Song and a Setlist GUI implemented in the system of FIG. 1A.
[Miller: Fig. 11; 0017] FIG. 11 is an exemplary Setlist GUI implemented in the system of FIG. 1A.
receiving, via the graphical user interface, a first user input comprising a user request for the performer to take a user-specified action during the live event at the live event; and
[Miller: 0143] With the system 100, the listener is able to request songs, boost a song, or tip an artist or band. In this regard, the system 100 comprises a Request and Setlist GUI 4515 at FIG. 9, a Band Live Request a Song GUI 4602 at FIG. 10, and a Band Live Setlist GUI 1101 at FIG. 11. In order to navigate to a Request and Setlist GUI 4515, the listener selects one of the event icons 1701-1704 (FIG. 32) if the listener is connected to the artist or band through the Connect GUI 2006 of FIG. 31. Please note: For examination purposes, the listener requesting a song as illustrated in Fig. 10 by activating Box 4600 is the first user input.
transmitting, via the processor, the user request for receipt by a performer mobile device of the performer during the live event upon receipt of a user acceptance of a term associated with the user request.
[Miller: 0086] Note that one of the mobile devices 103-105 may be Band A′s mobile device. Thus, Band A is able to see song requests, so they can play the songs requested. Band A can also see the monetary value of the tips they have been receiving during the performance.
[Miller: 0120] FIG. 8 depicts an exemplary Share Your Location GUI displayed to the display device 200 of the mobile device 103 by the music live application 216. If the listener desires to share their location with other listeners of the system 100, the listener selects an AGREE pushbutton 400. On the other hand, the listener can select the Remind Me Later pushbutton 401.
[Miller: 0146] Once the listener has provided a valid payment method, the listener may select Request $1 pushbutton 4507 in FIG. 9 associated with a particular song, e.g., What Makes You Country. Once requested, the music live application 216 displays the Thanks for Requesting a Song GUI 5202 in FIG. 15.
[Miller: 0147] As described, the requested song appears on the Band Live Setlist GUI 1101 (FIG. 11) among many other requested songs in the setlist 1102. Also described, if the listener desires their song to play ahead of those songs listed, the listener can select the Boost pushbutton 1100. When the listener selects the Boost pushbutton1100, the music live application 216 displays a Boost Your Song GUI 4900 depicted in FIG. 16. The Boost Your Song GUI 4900 comprises a $1 Box 4905 that when selected the listener is charged a dollar and their particular song is boosted over another song in the Setlist. The Boost Your Song GUI 4900 comprises an $8 Box 4906 that when selected charges the listener eight dollars and boosts their particular song to the top of the setlist. The value of the $8 box is based on an algorithm that determines the difference between the price of the top song and the currently boosted song and is shown under the First Place oval 4908. Please note: Boost your song comprising a $1 Box 4905 or $8 Box 4906 establishes a term that if accepted boosts the listener’s selection. Stated in other words, if the listener wants his/her requested song to be boosted, then the listener needs to accept the $1 or $8 boost fee. Please note: For examination purposes, the user accepts the term of $1 or $8 by activating the respective box which qualifies as a second user input.
detecting, via a microphone, sound waves;
Rejection is based in part upon the teachings applied to claim 22 by Miller and further upon the combination of Miller-Emerson.
In Miller see at least:
[Miller:0069] FIG. 63 is an exemplary Events GUI for Artists and Bands showing tips made per song, songs performed, and songs not yet performed and including a marker showing that a song is completed and the amount of time it took to complete the song implemented in the system of FIG. 1A.
[Miller: 0192] FIG. 63 depicts a Requests GUI 6999 that is similar to Requests GUI 5999 in FIG. 61. In this regard, Requests pushbutton 6996 shows the songs 6994 requested by listener(s), and the Played pushbutton 6995 shows the songs that have not yet been played 6991 or begun 6992. Once the checkmark 5995 is selected, the music live application 216 displays a Done oval 5998 and a timer indicating the amount of time the song has been playing 6990.
In Miller: a) a listener detects ambient sound waves interpreted by the listener as a song being played by a performer during a live performance, b) a marker on a mobile device is displayed showing that the song was completed during the live performance by the performer, and c) the system monetizes songs requested by oner or more listeners and played during a live performance. Miller, however, does not expressly mention detecting sound waves by a microphone that are interpreted as a song being played. Emerson on the other hand would have taught Miller such techniques.
In Emerson see at least:
[Emerson: 0013] In one implementation, acoustic fingerprinting service providers (such as Media Monitors LLC, ASCAP [American Society of Composers, Authors and Publishers], and Broadcast Music Inc. [BMI]) provide a monitoring and auditing function for radio stations, or other clients that wish to audit radio stations, to verify that a radio station has played their commercials according to agreement, or to identify and track the songs played by a radio station.
[Emerson: 0015] In a variation of this business model, the acoustic fingerprinting service providers (such as Yes.com, Nielsen), configured as just described, determine the artist and title of songs that have played, and make that information available to their radio station clients via proprietary Internet connection arrangements in a controlled and limited fashion so song information can be displayed on the radio station's website, or on an Internet media player configured to play the radio station's content. In these configurations, the use of a proprietary connection enables the display of only the most current song, and induces the audience to click through to the service provider's own website to access the listings of previous songs. The service providers monetize the visits of listeners that click through in this fashion by the presentation of ads, and by offering songs on the playlist for sale.
[Emerson: 0028] Still another embodiment provides for obtaining artist and title information for music heard by a listener in possession of a smart phone (or, generally, a cell phone) wherein the smart phone is provisioned to continuously "listen" to ambient sounds via the smart phone microphone, and consequently "hear" whatever the user hears, even when the smart phone display is off. Such a capability is common in voice recording apps. This embodiment is a method and a system for a smart phone application (herein, an "app", or "smartphone app", or "song ID app"), or an inherent capability of the smart phone itself such as by a feature of the smart phone operating system or electronic design, to electronically and internally monitor the smart phone microphone and to detect the presence of music.
[Emerson: 0108] FIG. 11 is a schematic illustration of an embodiment in which a song ID app 210 is provisioned to listen to ambient audio, illustrated as originating from a portable radio 700, via the smart phone's microphone 622. Operationally, this embodiment is the same as that described for FIGS. 6-10 except that in this embodiment, the song ID app 210 is configured to attach itself by a software mechanism into a system resource which can make the audio stream from the microphone available, such as the audio input subsystem 620 FIG. 8.
[Emerson: 0109] Song ID app 210 accesses the audio stream from the microphone 622 and analyzes that stream to detect the presence of music and the beginning of a song using music detection schemes as previously described. The process is the same as that described for FIG. 10, except that in this embodiment, element 503 for receiving the audio stream originates from the smart phone microphone 622.
[Emerson: 0110] FIG. 12 is a schematic illustration of the embodiment as described in FIG. 11, with the difference that the wireless transmission access method between the smart phone and the Internet is via the cell phone service provider's cellular technology 230, rather than Wi-Fi (item 240 FIG. 11). In this arrangement the smart phone connects by conventional cell phone wireless transmission 230 to a cell phone tower 400. In the current common cell phone wireless network design, a cell phone tower connects via a network gateway system provided by the wireless service provider (not shown), which connects the wireless service provider's network 410 to the worldwide Internet backbone system 450.
[Emerson: 0192] Important benefits of the embodiments incorporating a user smart phone: since the app has received the identification of every song played on an associated radio or heard by the user either through the smart phone or aurally, the smart phone song ID app can keep a record of each of those songs as well as the station or source, the time played, and even the geographic location of the user at the time the song played. It is also of benefit that this applies even for those stations or sources that provide artist and title information, including satellite radio. This enables the song ID app provider and the acoustic fingerprinting service provider the opportunity to offer for sale every song heard by the listener, even from sources which also offer their songs for sale.
One of ordinary skill in the art before the effective filing date would have recognized that applying the known techniques of Emerson, which detect ambient audio from a source via a smartphone microphone that is determined to be a song, would have yielded predictable results and resulted in an improved system. It would have been recognized that applying the techniques of Emerson to the teachings of Miller would have yielded predictable results because the level of ordinary skill in the art demonstrated by the references applied shows the ability to incorporate such data processing features into similar systems. Obviousness under 35 USC 103 in view of the Supreme Court decision KSR International Co. vs. Teleflex Inc.
and confirming, via the processor, that the performer has fulfilled the user request during the live event based on the detected sound waves.
Rejection is based upon the teachings and rationale applied to claim 22 by Miller-Emerson and further upon teachings and suggestions based upon the combination of Miller-Emerson.
As taught and suggested by Miller-Emerson:
A listener can request a live performer to play a song and make payment based upon agreed-to terms. The requested song is placed on a setlist to be played;
The listener’s smartphone, detects ambient sound via a microphone, which is interpreted to be a song.
The system displays a requested song as having been played and the amount of playing time;
Portable radio 700 (Emerson) transmits a song currently playing on a radio station in the form of sound waves to the mobile device provisioned to listen to ambient audio that the listener hears. The analog equivalent is the live performer singing/playing a song transmitted in the form of sound waves to the listener provisioned to listen to ambient audio, i.e. the listener hears the song being played.
Known techniques for auditing a radio station or other clients verify that a radio station has played their commercials according to agreement, or to identify and track the songs played on the radio station.
Given that a) three parties are involved fulfilling a transaction: listener, performer and the system, b) both the performer and the system know the listener’s requested song was played, Miller: Fig. 63 (Done), and c) the listener’s microphone app-enabled smartphone detected the listener’s requested song having been played, it would have been obvious to try, by one of ordinary skill in the art before the effective filing date, to confirm by the listener’s smartphone that the requested song was played, and incorporate it into the system of Miller-Emerson since there are a finite number of identified, predictable potential solutions to the recognized need and one of ordinary skill in the art could have pursued the known potential solutions with a reasonable expectation of success. Obviousness under 35 USC 103 in view of the Supreme Court decision KSR International Co. vs. Teleflex Inc.
Regarding claim 23: Rejection is based upon the teachings and rationale applied to claim 22 by Miller-Emerson regarding presenting the term associated with the user.
Regarding claim 24: Rejection is based upon the teachings and rationale applied to claim 22 by Miller-Emerson regarding a second user input comprising the user acceptance of the term associated with the user request.
Regarding claim 25: Rejection is based upon the teachings and rationale applied to claim 22 by Miller-Emerson regarding confirmation of the term associated with the user request. See [Miller: Fig. 15] as confirmation for first user input. See [Miller Fig. 16 (4906, 4908); 0094] as confirmation of the listener’s First Place Boost resulting in the listener seeing his/her selected song move to First Place in setlist rankings.
Regarding claim 26: Rejection is based upon the teachings and rationale applied to claim 25 by Miller-Emerson regarding receipt by the performer mobile device. See [Miller: 0086] Note that one of the mobile devices 103-105 may be Band A′s mobile device. Thus, Band A is able to see song requests, so they can play the songs requested. Band A can also see the monetary value of the tips they have been receiving during the performance.
Regarding claim 27: Rejection is based upon the teachings and rationale applied to claim 22 by Miller-Emerson regarding host server receiving user requests and term acceptance. [Miller: 0077] Internal server 101 is a computing device that communicates via the network 102. In this regard, server 101 communicates with the mobile devices 103-105 and the payment server 106. The internal server 101 controls functions related to the app. For example, the mobile device 103 decides to create an event, e.g., a live music show. The app sends data indicative of creating an event to internal server 101. The server 101 then displays to others on the network, e.g., mobile devices 104-105, that the event has been created, and they may join the created event.
Regarding claim 42: Rejection is based upon the teachings and rationale applied to claim 22 by Miller-Emerson.
Regarding claims 43 and 44: Rejections are based upon the teachings and rationale applied to claim 22 by Miller-Emerson.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 28-41 are rejected under 35 USC 102(a)(2) as being unpatentable over Miller, US 2020/0320442.
Miller teaches all the limitations of claim 28-41. In Miller see at least (underlined text is for emphasis):
Regarding claim 40: (Currently Amended) A computer-implemented method of remotely influencing a performer at a live event via a mobile device of a user, the mobile device comprising a display, a memory and a processor, wherein software has been preloaded onto the memory of the mobile device that, when executed by the processor, causes the processor to perform the method, the method comprising:
[Miller: 0002] Many people frequent bars or other entertainment venues to watch bands perform live music. Often, the individuals in the audience participate in selecting what music is played by the artists. In this regard, an individual in the audience can walk to the stage, ask the artist to play a song, and provide a sum of money to the artists to play the song requested as a tip. A second individual may approach the stage on which the band is performing and offer another sum of money to the artists to play a different song. This second individual may pay a premium to the artist to get their song request played before other songs that have been requested.
[Miller: 0003] Also, some bands who perform live at these bars or other entertainment venues perform only for the tips they receive from the audience. Thus, frequently, a container, e.g., a hat or a bucket, is passed around the audience in the bar or other entertainment venues. If individuals in the audience want to tip the artists in the band performing the individuals in the audience place money in the container.
[Miller: 0074] FIG. 1A is a block diagram of an exemplary system 100 for digitally interacting with live musicians to facilitate tipping, song requests, and live bidding in accordance with an embodiment of the present disclosure. The system 100 comprises a plurality of mobile devices 103-105, an internal server 101 and a payment server 106. The mobile devices 103-105 and the servers 101 and 106 communicate via a network 102.
[Miller: 0079] In operation, a user (not shown) of the mobile device 103 may request software, the app, to be downloaded to their mobile device 103. The mobile device 103 transmits data requesting the download to the internal server 101, and the internal server 101 transfers data indicative of the app to the mobile phone 103. Likewise, a user (not shown) of the mobile device 104 may request the app to be downloaded to their mobile device 104. Therefore, the mobile device 104 transmits data requesting the download to the internal server 101, and the internal server 101 transfers data indicative of the app to the mobile phone 104.
displaying, via the display, a graphical user interface configured to receive user inputs;
[Miller: Fig. 9: 0015] FIG. 9 is an exemplary Request a Song and a Setlist GUI implemented in the system of FIG. 1A.
[Miller: Fig. 11; 0017] FIG. 11 is an exemplary Setlist GUI implemented in the system of FIG. 1A.
receiving, via the graphical user interface, a first user input comprising a user request for the performer to take a user-specified action during the live event at the live event; and
[Miller: 0143] With the system 100, the listener is able to request songs, boost a song, or tip an artist or band. In this regard, the system 100 comprises a Request and Setlist GUI 4515 at FIG. 9, a Band Live Request a Song GUI 4602 at FIG. 10, and a Band Live Setlist GUI 1101 at FIG. 11. In order to navigate to a Request and Setlist GUI 4515, the listener selects one of the event icons 1701-1704 (FIG. 32) if the listener is connected to the artist or band through the Connect GUI 2006 of FIG. 31. Please note: For examination purposes, the listener requesting a song as illustrated in Fig. 10 by activating Box 4600 is the first user input.
transmitting, via the processor, the user request for receipt by a performer mobile device of the performer during the live event upon receipt of a user acceptance of a condition associated with the user request;
[Miller: 0086] Note that one of the mobile devices 103-105 may be Band A′s mobile device. Thus, Band A is able to see song requests, so they can play the songs requested. Band A can also see the monetary value of the tips they have been receiving during the performance.
[Miller: 0120] FIG. 8 depicts an exemplary Share Your Location GUI displayed to the display device 200 of the mobile device 103 by the music live application 216. If the listener desires to share their location with other listeners of the system 100, the listener selects an AGREE pushbutton 400. On the other hand, the listener can select the Remind Me Later pushbutton 401.
[Miller: 0146] Once the listener has provided a valid payment method, the listener may select Request $1 pushbutton 4507 in FIG. 9 associated with a particular song, e.g., What Makes You Country. Once requested, the music live application 216 displays the Thanks for Requesting a Song GUI 5202 in FIG. 15.
[Miller: 0147] As described, the requested song appears on the Band Live Setlist GUI 1101 (FIG. 11) among many other requested songs in the setlist 1102. Also described, if the listener desires their song to play ahead of those songs listed, the listener can select the Boost pushbutton 1100. When the listener selects the Boost pushbutton1100, the music live application 216 displays a Boost Your Song GUI 4900 depicted in FIG. 16. The Boost Your Song GUI 4900 comprises a $1 Box 4905 that when selected the listener is charged a dollar and their particular song is boosted over another song in the Setlist. The Boost Your Song GUI 4900 comprises an $8 Box 4906 that when selected charges the listener eight dollars and boosts their particular song to the top of the setlist. The value of the $8 box is based on an algorithm that determines the difference between the price of the top song and the currently boosted song and is shown under the First Place oval 4908. Please note: Boost your song comprising a $1 Box 4905 or $8 Box 4906 establishes a term that if accepted boosts the listener’s selection. Stated in other words, if the listener wants his/her requested song to be boosted, then the listener needs to accept the $1 or $8 boost fee. Please note: For examination purposes, the user accepts the term of $1 or $8 by activating the respective box which qualifies as a second user input.
determining, via the processor, a location of the live event; performing, via the processor, a spatio-temporal confirmation based on the determined location of the live event; and
[Miller: 0122] FIG. 32 is an exemplary Home GUI 1712 displayed to the display device 200 of the mobile device 103 by the music live application 216 (FIG. 2) after the listener registers with the system 100. Notably, as the listener navigates through the GUIS 7-45, the listener can return to the Home GUI 1712 by selecting the Home icon 1708 at the bottom of the Home GUI 1712 or any other GUI in the system 100 that comprises the Home icon 1708. The Home GUI 1712 exhibits a wide range of functionality implemented on a map. In this regard, circle 1700 identifies the listener's current location obtained from the system's Global Positioning System (GPS) and a particular radius around the listener, and the teardrops 7001-7004 identify events and the location of those events where they are placed on the map. In one embodiment, the Home GUI 1712 could display teardrops 7001-7004 identifying events in the listener's favorite genre's as received as input in the Genre GUI 503 (FIG. 7). Please note: Teardrop images confirm location
[Miller: 0130] If the listener desires to connect to a live event, the listener selects one of the Event icons 1701-1704 on the Home GUI 1712 of FIG. 32. When an Event icon 1701-1704 is selected, music live application 216 displays the Connect GUI 2006 of FIG. 31. The Connect GUI 2006 of FIG. 31 comprises a Connect button 2001. When the listener selects the Connect button 2001, the listener is electronically and communicatively connected to the system of the band playing live, e.g., Linkin Park in box 2010. Under the section labeled Tip the Artist 2005, the listener can tip the artist or band money by selecting $1, box 2002, $5, box 2003, or Custom, box 2004.
[Miller: 0138] The Home GUI 1712 of FIG. 32 further comprises a Calendar pushbutton 1711 that when selected displays the Events GUI 5904 shown in FIG. 43. FIG. 43 shows an Artist or Band list 5906 when the All Events pushbutton 5910 is selected. Thus, the Events GUI 5904 shows Artists or Bands coming to the listener's location, e.g., Linkin Park, Filip Band, Thirty Seconds to Mars, etc.
[Miller: 0139] With reference to FIG. 32, in the Home GUI 1712, the date and city above the map are selectable. If the 05.02.2018 NEW YORK is selected by the listener, an Event Search Location GUI 2299 of FIG. 28 is displayed by the music live application 216. The Location GUI 2299 of FIG. 28 comprises a Search text box 2298. The listener can enter text in the Search text box 2298 for the city they desire to visit. In response, the music live application 216 displays a Search GUI 2201 as shown in FIG. 27. The Search GUI 2201 comprises a text box 2100 where the listener can begin typing their desired location via the keyboard 604, and as the listener types a location, a list 2101 appears that match what the listener is typing. The listener may then find their place where they would like to see a concert. Further, in Event Search Location 2299 the listener can select a date for Date text box 2202. When the listener selects the Date text box 2202, the Date GUI 3690 of FIG. 29 is displayed to the display device 200 by the music live application 216. The listener selects the date they desire to see an artist or band, and the music live application 216 navigates the listener back to the Enter Location GUI 2299. The listener can also select their desired genre from the list 2203. There is also a slide button 2204 that enables a listener to choose how far from the listener's current location to search for an event. Please note: Location and date establish a spatio-temporal relationship.
[Miller: 0140] Once the listener has entered all the information in the Enter Location GUI 2299, the listener selects the Done pushbutton in the upper-righthand corner. Once the listener selects the Done pushbutton, the music live application 216 finds events that match the listener's criteria entered in the Enter Location GUI 2299. Once events are found, the music live application places identifiers, such as identifiers 1701-1704 on the map of the Home GUI 1712 of FIG. 32.
[Miller: 0143] With the system 100, the listener is able to request songs, boost a song, or tip an artist or band. In this regard, the system 100 comprises a Request and Setlist GUI 4515 at FIG. 9, a Band Live Request a Song GUI 4602 at FIG. 10, and a Band Live Setlist GUI 1101 at FIG. 11. In order to navigate to a Request and Setlist GUI 4515, the listener selects one of the event icons 1701-1704 (FIG. 32) if the listener is connected to the artist or band through the Connect GUI 2006 of FIG. 31. Please note: a) Miller provides a spatio-temporal confirmation based on the determined location of the selected live event. For example, Figs. 9 and 10 confirm that Filip Band is Playing Now: One Step Closer; and b) Request a Song Boost serves as conditions/terms of an agreement between the listener and performer.
fulfilling, via the processor, a term associated with the user request based on the spatio-temporal confirmation.
[Miller: 0192] FIG. 63 depicts a Requests GUI 6999 that is similar to Requests GUI 5999 in FIG. 61. In this regard, Requests pushbutton 6996 shows the songs 6994 requested by listener(s), and the Played pushbutton 6995 shows the songs that have not yet been played 6991 or begun 6992. Once the checkmark 5995 is selected, the music live application 216 displays a Done oval 5998 and a timer indicating the amount of time the song has been playing 6990. Please note: Requested song title, e.g. Fig. 63 One Step Closer, qualifies as a fulfillment term. $25 qualifies as a fulfillment term.
Regarding independent claims 28 and 34: Rejections are based upon the disclosures applied claim 40 by Miller.
Regarding claim 29 and 35: Rejections are based upon the disclosures applied to claims 28 and 34 by Miller regarding presenting the term associated with the user.
Regarding claims 30, 38