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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the screen must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 18-20 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.
Regarding claim 18-20, it is unclear how the visual identifiers are visible to a plurality of persons. It is unclear how the visual identifiers are provided.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 18-20 are rejected under 35 U.S.C. 101 because The claimed invention is directed to a judicial exception without significantly more. This judicial exception is not integrated into a practical application because the claimed invention is directed to a judicial exception (i.e., an abstract idea, a law of nature, or a natural phenomenon) without, significantly more. Based upon reconsideration of all relevant factors with respect to the claims as a whole, the claims are directed to non statutory subject matter which do not include additional elements that are sufficient to amount to significantly more than the judicial exception because of the following analysis: a method of sequentially and in synchronization with the audio recording or adaptation, providing one or more visual identifiers visible to the plurality of persons, wherein each visual identifier is associated with a predetermined pitch, wherein, providing of each visual identifier prompts a group of the plurality of persons to play the musical instrument associated with them, such that a melody is formed which is in synchronization with the predetermined song.
The process of providing a predetermined song, in unison, the method comprising the steps of:S1: providing a plurality of musical instruments according to claim 1; S2: providing each of the plurality of persons with one of the plurality of musical instruments; S3: playing an audio recording or an adaptation of an audio recording of the predetermined song;S4: sequentially and in synchronization with the audio recording or adaptation, providing one or more visual identifiers visible to the plurality of persons, wherein each visual identifier is associated with a predetermined pitch, wherein, providing of each visual identifier prompts a group of the plurality of persons to play the musical instrument associated with them, such that a melody is formed which is in synchronization with the predetermined song is a process that, under the broadest reasonable interpretation, covers performance of the limitation in the mind but for recitation of a musical instrument. Nothing in the claims precludes the step from practically being performed in the mind. The claims encompass a person visualizing identifiers based in predetermined pitches wherein the identifier prompts people to play the musical instrument. The claims recite the use of data going in and outputting a result. If a claim limitation, under its broader reasonable interpretation, covers performance of the limitation in the mind but for the recitation of a generic component, (i.e. the musical instrument) then it falls within the “Mental processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea.
The judicial exception is not integrated into a practical application. In particular, the claims recite no additional elements that implements the identified abstract idea. Thus, the applicant’s claims amount to no more than a data going in to a device and outputting an identifier. Accordingly, the claim recites an abstract idea and does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claims are directed to an abstract idea.
Reevaluated under step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception the additional elements and characteristics further a screen. As discussed above with respect to the integration of the abstract idea into a practical application, the additional elements of a musical instrument and the screen are not more than mere instructions to be used by a user. The “method” is not a practical application and the visual identifiers are not a technical improvement. Mere instructions to apply an exception using a visual identifier provide an inventive concept (significantly more). The combination of elements does not indicate a significant improvement to the musical instrument and merely provide the implementation of the abstract idea. There are no limitations that transform the judicial exception into a patent eligible application such that the claims amount to more than the judicial exception.
Although the dependent claims add additional elements as recited above, they only serve to further limit the abstract idea reciting limitations on what the information is and how it is used . These information characteristics do not change the fundamental analogy to the abstract idea of grouping of “Certain Methods of Organizing Human Activity,” and when viewed individually or as a whole, they do not add anything substantial beyond the abstract idea. Therefore the claims when taken as a whole are ineligible for the same reasons as the independent claim.
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 1, 7, 8, and 10 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Schwartz (US5986194).
Regarding claim 1, Schwartz discloses the use of a musical instrument, comprising: a main body (1, 2) operatively defining a hollow chamber configured as a sound box (column 4, line 57); a percussive bar (8) operatively fixed relative to the main body and spaced therefrom by at least a first spacer member (9), characterized in that the main body is configurable in one of an assembled configuration and disassembled configuration (see figures 1, 2, and 8).
Regarding claim 7, Schwartz discloses wherein the main body comprises two open ends (1a, 1b), and wherein the musical instrument further comprises a plug member (2) having an external shape commensurate with a cross-sectional shape of the hollow chamber (see figure 2).
Regarding claim 8, Schwartz discloses wherein the plug member (2) is arranged in one of a number of predetermined positions (column 4, lines 54-60) within the main body to define a volume of the hollow chamber and wherein each of the predetermined positions is associated with a predetermined pitch, such that positioning the plug member at a predetermined position configures or tunes the musical instrument into a predetermined pitch (column 4, lines 54-60).
Regarding claim 10, Schwartz discloses wherein the plug member is positioned within the main body during assembly of the musical instrument, thereby to configure or tune the musical instrument into a predetermined pitch (column 4, lines 54-60).
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 15, 16, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Schwartz.
Regarding clams 15 and 16, Schwartz does not disclose the use of identifiers.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date at the time the invention was made to modify the device as disclosed in Schwartz to include at least a portion of the musica instrument being marked with a predetermined pitch identifier wherein the identifier comprises one of: a color; a letter; a numeral; and a special character since the use of pitch identifier marking that are colors, letter, numbers, and special characters are conventional and well known in the art.
Regarding claim 17, Schwartz does not disclose a bamboo material.
It would have been obvious to one of ordinary skill in the art before the effective filing date at the time the invention was made to modify the device as disclosed in Schwartz to include a percussive bar that is manufactured from bamboo since the use of bamboo is a conventional and well known material in percussion instruments.
Allowable Subject Matter
Claims 2-6, 9, and 11-14 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KIMBERLY R LOCKETT whose telephone number is (571)272-2067. The examiner can normally be reached 8:30-5:00 pm M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dedei Hammond can be reached at 571-270-7938. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KIMBERLY R LOCKETT/Primary Examiner, Art Unit 2837