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 .
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. The claims recite acquiring facial expression data, receiving current facial expression data of a person when media content is presented, comparing current facial expression data to target facial expression criteria based on facial expression parameter data, and establishing media metrics data for the media content based on the comparison. The abstract idea encompasses human activity in which an individual visually acquires facial expression data from a subject, compares the expression to a target facial expression and manipulating media marketing content in accordance with the comparison. This judicial exception is not integrated into a practical application because there is no meaningful limitations beyond generally linking the use of an abstract idea to a particular technical environment. Furthermore, the process or method steps performed are not enough to qualify as “significantly more” than the abstract idea itself as the steps may be performed in the human mind as a human visually determining similarities between an acquired image and stored reference images to make a determination in regards to marketing to an individual.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements when considered both individually and as an ordered combination do not amount to significantly more than the abstract idea. The claims recite a facial expression detection device, a media device and a system processor. The claims further recite a camera, a handheld computing device and a watch. The aforementioned additional elements amount to merely using generic computer components to implement general processing and display an image to a user while the user makes desired determinations. Generic computer components recited as performing generic functions that are well-understood, routine and conventional amount to no more than implementing the abstract idea with a computerized system. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified abstract idea. There is no indication that the elements improve the functioning of a computer or improves any other technology.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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, 2, 4, 13, 14, 16, 17 and 20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Aaron Itzkowitz (US 20190058918 A1).
Regarding claim 1, Itzkowitz discloses a media metrics system (¶ [33]) comprising:
a facial expression detection device configured to acquire facial expression data of a person (¶ [34]);
a system processor in data communication with the facial expression detection device and configured to execute stored computer executable system instructions (¶ [47]); and
a media device controllably coupled to the system processor and configured to present media content to the person by playing media data (¶ [38]);
wherein the computer executable system instructions include the steps of:
receiving facial expression parameter data establishing target facial expression criteria defining a smile (¶ [35]);
receiving current facial expression data corresponding to the facial expression of the person from the facial expression detection device when the media content is presented to the person (¶ [38]);
comparing the current facial expression data to the target facial expression criteria of the facial expression parameter data (¶ [38]); and
establishing media metrics data for the media content based on the comparison of the current facial expression data to the target facial expression criteria (¶ [38] and ¶ [44]).
Regarding claim 2, Itzkowitz discloses the system of claim 1 (see rejection of claim 1), wherein the media content includes entertainment content and marketing content (see rejection of claim 1 wherein “desirable” content and ¶ [44] advertising).
Regarding claim 4, Itzkowitz discloses the system of claim 1 (see rejection of claim 1), wherein the computer executable system instructions further comprise identifying whether the current facial expression data satisfies the target facial expression criteria (¶ [38]).
Regarding claim 13, Itzkowitz discloses the system of claim 1 (see rejection of claim 1), wherein the facial expression detection device includes a camera (¶ [34]).
Regarding claim 14, Itzkowitz discloses the system of claim 1 (see rejection of claim 1), wherein the facial expression detection device is incorporated into a handheld computing device (¶ [38] mobile device with camera).
Regarding claim 16, Itzkowitz discloses the system of claim 1 (see rejection of claim 1), wherein:
the media content presented to the user defines initial media content (¶ [39]); and
the computer executable system instructions further comprise selecting subsequent media content to present to the person based on the comparison of the current facial expression data to the target facial expression criteria when presenting the initial media content (¶ [39]).
Regarding claim 17, Itzkowitz discloses the system of claim 16 (see rejection of claim 16), wherein the computer executable system instructions further comprise selecting subsequent media content related to the initial media content when the current facial expression data satisfies the target facial expression criteria when presenting the initial media content (¶ [38] selection of new media presentation).
Regarding claim 20, Itzkowitz discloses the system of claim 16 (see rejection of claim 16), wherein the computer executable system instructions further comprise selecting subsequent media content unrelated to the initial media content when the current facial expression data fails to satisfy the target facial expression criteria when presenting the initial media content (¶ [39]).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Aaron Itzkowitz (US 20190058918 A1) in view of Leonardo Alves Machado et al (US 20130290994).
Regarding claim 3, Itzkowitz discloses the system of claim 4 (see rejection of claim 4).
Itzkowitz fails to explicitly disclose prompting the person to exhibit a smile with therapeutic benefits prior to presenting the marketing content; and restricting the media device from presenting the marketing content until the system processor identifies that the current facial expression data satisfies the target facial expression criteria.
Machado et al, in the same field of endeavor of analyzing and assessing characteristics of facial expressions (Abstract), teaches prompting the person to exhibit a smile with therapeutic benefits prior to presenting the marketing content (¶ [55]); and restricting the media device from presenting the marketing content until the system processor identifies that the current facial expression data satisfies the target facial expression criteria (¶ [56] selecting different playback content constitutes restricting the device from presenting the marketing content associated with the previous playback content; ¶ [31] wherein the content may be advertisement/marketing content).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device to utilize the teachings of Machado et al which teaches prompting the person to exhibit a smile with therapeutic benefits prior to presenting the marketing content; and restricting the media device from presenting the marketing content until the system processor identifies that the current facial expression data satisfies the target facial expression criteria to ensure advertisement information is intentionally commanding the attention of the desired audience and induce prospective customers to purchase the marketed goods and/or services.
Claims 5, 6 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Itzkowitz in view of Hassan Ugail et al (A Genuine Smile is Indeed in the Eyes – The computer aided non-invasive analysis of the exact weight distribution of human smiles across the face; Advanced Engineering Informatics 42 (2019)).
Regarding claim 5, Itzkowitz discloses the system of claim 4 (see rejection of claim 4).
Itzkowitz fails to explicitly disclose wherein the media metrics data includes how long the current expression data satisfied the target facial expression criteria.
Ugail et al teaches the media metrics data includes how long the current expression data satisfied the target facial expression criteria (Pg. 3 section 2.1 ¶ [2] lines 1-3 “measure…smile…duration”).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device to utilize the teachings of Ugail which teaches the media metrics data includes how long the current expression data satisfied the target facial expression criteria to aid in distinguishing a genuine smile from a posed smile as desired.
Regarding claim 6, Itzkowitz discloses the system of claim 4 (see rejection of claim 4), wherein the media metrics data includes how quickly the current expression data fails to satisfy the target facial expression criteria (see rejection of claim 5 wherein the duration of time the acquired information satisfies or how quickly it fails to satisfy are identical attributes).
Regarding claim 12, Itzkowitz discloses the system of claim 1 (see rejection of claim 1).
Itzkowitz fails to explicitly disclose wherein the target facial expression criteria includes the zygomatic major muscles of the person contracting to a selected extent; and the orbicularis oculi muscles of the person contracting to a selected extent.
Ugail et al teaches the target facial expression criteria includes the zygomatic major muscles of the person contracting to a selected extent; and the orbicularis oculi muscles of the person contracting to a selected extent (Pg. 2 Section 2 Related Work Paragraph 1 lines 3-5 “zygomatic major and Orbicularis Oculi” two major muscles to construct a smile).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device which communicates a satisfaction to utilize the teachings of Ugail which teaches the target facial expression criteria includes the zygomatic major muscles of the person contracting to a selected extent; and the orbicularis oculi muscles of the person contracting to a selected extent as the muscles are known in the art to aid in determining the genuineness of a smile and improves recognition of expressions.
Claims 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Itzkowitz in view of Brian William Beisel et al (US 11373446 B1).
Regarding claim 7, Itzkowitz discloses the system of claim 1 (see rejection of claim 1).
Itzkowitz fails to explicitly disclose wherein the media metrics data includes a satisfaction score corresponding to how well the current expression data satisfied the target facial expression criteria.
Beisel et al, in the same field of endeavor of determining user data corresponding to an emotion state of the user in association with presentation of content (Abstract), teaches the media metrics data includes a satisfaction score corresponding to how well the current expression data satisfied the target facial expression criteria (Col. 10 lines 48-54; Col. 16 lines 3-7).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device to utilize the teachings of Beisel et al which teaches the media metrics data includes a satisfaction score corresponding to how well the current expression data satisfied the target facial expression criteria to ensure the analyzed user emotion expressed matches a target emotion at a given time.
Regarding claim 8, Itzkowitz discloses the system of claim 7 (see rejection of claim 7).
Itzkowitz fails to explicitly disclose wherein the computer executable system instructions further comprise communicating the satisfaction score to a third party interested in the satisfaction score.
Beisel et al teaches communicating the satisfaction score to a third party interested in the satisfaction score (Col. 28 lines 28-35 user data sent to remote network; Col. 26 lines 1-8 User data corresponding to “emotional score”).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device to utilize the teachings of Beisel et al which teaches communicating the satisfaction score to a third party interested in the satisfaction score to enable storage and analyzation of user data by a desired entity providing the playback content to the users.
Regarding claim 9, Itzkowitz discloses the system of claim 8 (see rejection of claim 8).
Itzkowitz fails to explicitly disclose wherein the third party is a content creator that created the media content.
Beisel et al teaches the third party is a content creator that created the media content (Col. 9 lines 54-6); Fig. 2).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device which communicates a satisfaction score to a third party to utilize the teachings of Beisel et al which teaches the third party is a content creator that created the media content to enable storage and analyzation of user data by a desired entity providing the playback content to the users.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Itzkowitz in view of Beisel et al as applied to claim 8 above, and further in view of Daniel A. Hill (US 20060206371 A1).
Regarding claim 10, Itzkowitz discloses the system of claim 8 (see rejection of claim 8).
Itzkowitz fails to explicitly disclose wherein the media content includes entertainment content and marketing content; and the third party is a manufacturer, distributor, or retailer of a product advertised in the marketing content.
Hill, in the same field of endeavor of a method of assessing consumer reaction to a marketing stimulus (Abstract), teaches wherein the media content includes entertainment content and marketing content (¶ [27]; ¶ [29] appeal suggesting entertainment value); and the third party is a manufacturer, distributor, or retailer of a product advertised in the marketing content (¶ [27] business).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device which communicates a satisfaction score to a third party to utilize the teachings of Hill which teaches the media content includes entertainment content and marketing content; and the third party is a manufacturer, distributor, or retailer of a product advertised in the marketing content to enable businesses and organizations the ability to gain a better understanding of their customers' sensory and emotional experiences and improve product marketing efforts.
Claims 11, 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Itzkowitz in view of Beisel et al as applied to claim 7 above, and further in view of Mark W. Publicover et al (US 20160253710 A1).
Regarding claim 11, Itzkowitz discloses the system of claim 7.
Itzkowitz fails to explicitly disclose wherein the computer executable system instructions further comprise waiting to communicate the satisfaction score to the third party until a payment record indicates that the third party has paid a predetermined fee to receive the satisfaction score.
Publicover et al, in the same field of endeavor of providing advertisement content to users and acquiring feedback based on the content provided (Abstract), teaches waiting to communicate the satisfaction score to the third party until a payment record indicates that the third party has paid a predetermined fee to receive the satisfaction score (¶ [252] third party collects data in return for sharing a small portion of their earnings or a fixed monthly fee debited from their earnings).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device which communicates a satisfaction to utilize the teachings of Publicover et al which teaches waiting to communicate the satisfaction score to the third party until a payment record indicates that the third party has paid a predetermined fee to receive the satisfaction score to compensate users for their time and motivate future participation to enhance marketing efforts.
Regarding claim 18, Itzkowitz discloses the system of claim 17 (see rejection of claim 17).
Itzkowitz fails to explicitly disclose wherein the initial media content includes initial marketing content advertising a given product; and the subsequent media content related to the initial media content includes subsequent marketing content advertising the given product advertised in the initial media content.
Publicover et al teaches the initial media content includes initial marketing content advertising a given product (¶ [167]); and the subsequent media content related to the initial media content includes subsequent marketing content advertising the given product advertised in the initial media content (¶ [167]).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device which communicates a satisfaction to utilize the teachings of Publicover et al which teaches the initial media content includes initial marketing content advertising a given product; and the subsequent media content related to the initial media content includes subsequent marketing content advertising the given product advertised in the initial media content to improve media playback of viewer content and attempt to retain a viewer’s attention when advertising.
Regarding claim 19, Itzkowitz discloses the system of claim 17 (see rejection of claim 17).
Itzkowitz fails to explicitly disclose wherein the initial media content includes initial marketing content targeting a specified marketing demographic; and the subsequent media content related to the initial media content includes subsequent marketing content targeting the specified marketing demographic targeted in the initial marketing content.
Publicover et al teaches the initial media content includes initial marketing content targeting a specified marketing demographic; and the subsequent media content related to the initial media content includes subsequent marketing content targeting the specified marketing demographic targeted in the initial marketing content (¶ [167] wherein the content is targeted to users who frequently watch specific sports teams).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device which communicates a satisfaction to utilize the teachings of Publicover et al which teaches the initial media content includes initial marketing content targeting a specified marketing demographic; and the subsequent media content related to the initial media content includes subsequent marketing content targeting the specified marketing demographic targeted in the initial marketing content to improve media playback of viewer content and attempt to retain a viewer’s attention when advertising.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Itzkowitz in view of Dennis Wall et al (US 20210133509 A1).
Regarding claim 15, Itzkowitz discloses the system of claim 1 (see rejection of claim 1).
Itzkowitz fails to explicitly disclose wherein the facial expression detection device is incorporated into a watch.
Wall et al, in the same field of endeavor of facial recognition detection to categorize a face as exhibiting an emotion (¶ [44-45]), teaches the facial expression detection device is incorporated into a watch (¶ [39]).
It would have been obvious to one of ordinary skill in the art before the invention was effectively filed for the system as disclosed by Itzkowitz comprising a facial expression detection device, system processor, and media device which communicates a satisfaction to utilize the teachings of Wall et al which teaches the facial expression detection device is incorporated into a watch as a smartwatch is a well-known wearable computing device capable of providing therapeutic relief to an individual customized on a case-by-case- basis.
Conclusion
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/JAMARES Q WASHINGTON/Primary Examiner, Art Unit 2681
March 4, 2026