DETAILED ACTIONNotice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant's arguments filed 27 August 2025 have been fully considered but they are not persuasive. The Examiner disagrees with Applicant’s assertions that muted colors could be considered novel subject matter without any further claimed disclosure of its significance. The broadest reasonable interpretation of claim 1 is a device that detects the biometrics of a user and presents a unique presentation of digital content using muted colors. Muted colors can consist of a plethora of colors including grays which are found in abundance in digital content. Further the broadest reasonable interpretation of “uses muted colors” is that the digital content has at least one pixel of a muted color within the image, which would be a mere design choice. The mere use of muted colors in digital content would not hold patentable weight.
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.
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.
Claim(s) 1-4, 6-9, 11-14 and 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over WATANABE (2023/0316618). In regards to claim 1, WATANABE teaches a system comprising: (a) a first device comprising: (i) a sensor configured to detect a biometric identifier information of an individual (See; p[0455] for a face tracking method based on information acquired by the camera 24a within HMD 100), (ii) a processor configured to analyze the detected biometric identifier information of the individual (See; Fig. 2 for CPU 21(31)), and (b) a second device comprising a processor configured to generate a unique presentation of digital content based on the detected biometric identifier information of the individual (See; Figs. 4B, 8 p[0226]-p[0230] and p[0455] where motion data indicative of a user’s facial expressions indicating at least the depth of each of a plurality of parts of the face of the distributor, and the coordinates and angles of the head of the distributor is used by a server device to generate digital avatars that have facial expressions, move and talk like each individual user. This content is unique based on what the current user is doing based on their detected facial expressions and audio data. This presentation is presented to the user and other user’s such as in video 300). WATANABE fails to explicitly teach wherein the unique presentation of digital content uses muted colors. However, it would have been obvious to use colors in general to represent the avatars, as well as a single muted color as deemed appropriate by the program. Therefore it would have bene obvious to one of ordinary skill in the art at the time of filing to modify WATANABE’s avatar to use muted colors as a mere design choice, there being no criticality and no unexpected results from using muted colors when representing a user in an avatar.
In regards to claim 2, WATANABE teaches wherein the detected biometric identifier information of the individual is a variable biometric (See; p[0455]).
In regards to claim 3, WATANABE teaches wherein detected biometric identifier information of the individual is a fixed biometric (See; p[0455] where if the user is in a fixed state, i.e. not moving and smiling, the displayed avatar will be fixed as well while smiling).
In regards to claims 4, 9 and 14, WATANABE teaches wherein the unique presentation of digital content is directed to sooth emotions of the individual (See; Figs. 4B, 8 p[0226]-p[0230] and p[0455] where the displayed avatar could reasonably be construed as being directed to sooth emotions of the individual. What sooths each unique user’s emotions is open ended and different for every user. For example, the user seeing their own avatar move in accordance with what they’re doing would sooth the emotions of the user, or seeing another user’s avatar interact with their avatar would sooth the user’s emotions, etc.). In regards to claims 6, 11 and 16, WATANABE fails to explicitly teach wherein the unique presentation of digital content uses a key register with a half step rhythm. However, WATANABE teaches presenting audio data from the user’s speech or from another user (See; p[0455]), where it could be reasonable that a user could present any rhythm, including a half step rhythm. Therefore it would have been obvious to one of ordinary skill in the art at the time of filing to modify WATANABE to present a half step rhythm as a mere design choice, there being no criticality and no unexpected results from using a half step rhythm.
In regards to claim 7, 12 and 17, WATANABE teaches wherein the unique presentation of digital content is directed to motivate emotions of the individual (See; Figs. 4B, 8 p[0226]-p[0230] and p[0455] where the displayed avatar could reasonably be construed as being directed to motivate emotions of the individual. What motivates each unique user’s emotions is open ended and different for every user. For example, the user seeing their own avatar move in accordance with what they’re doing could motivate the emotions of the user, or seeing another user’s avatar interact with their avatar could motivate the user’s emotions, etc.).
In regards to claim 8, WATANABE teaches a system comprising: (a) a first device comprising: (i) a sensor configured to detect a variable voice biometric identifier information of an individual (See; p[0455] for acquiring audio data that is based on the speech of the user) (ii) a processor configured to analyze the variable voice detected biometric identifier information of the individual (See; Fig. 2 for CPU 21(31)), and (b) a second device comprising a processor configured to generate a unique presentation of digital content based on the variable voice detected biometric identifier information of the individual (See; Figs. 4B, 8, p[0226]-p[0230] and p[0455] where “the terminal device 20C can acquire audio data that is based on the speech of the user A in order to change the facial expression of the avatar 450, and can acquire audio data that is based on the speech of the second distributor in order to change the facial expression of the avatar 220….. The terminal device 20C can identify an emotion of the speaker by analyzing the intonation and/or speech speed or the like of the speaker based on the audio data thus acquired. The terminal device 20C can reflect the emotion thus identified in the facial expression of the avatar displayed in the separated video. This content is unique based on what the current user is doing based on their audio data. This presentation is presented to the user and other user’s such as in video 300). WATANABE fails to explicitly teach wherein the unique presentation of digital content uses muted colors. However, it would have been obvious to use colors in general to represent the avatars, as well as a single muted color as deemed appropriate by the program. Therefore it would have bene obvious to one of ordinary skill in the art at the time of filing to modify WATANABE’s avatar to use muted colors as a mere design choice, there being no criticality and no unexpected results from using muted colors when representing a user in an avatar.
In regards to claim 13, WATANABE teaches a system comprising: (a) a first device comprising: (i) a sensor configured to detect variable facial biometric identifier information of an individual (See; p[0455] for a face tracking method based on information acquired by the camera 24a within HMD 100), (ii) a processor configured to analyze the variable facial detected biometric identifier information of the individual (See; Fig. 2 for CPU 21(31)), and (b) a second device comprising a processor configured to generate a unique presentation of digital content based on the variable facial detected biometric identifier information of the individual (See; Figs. 4B, 8, p[0226]-p[0230] and p[0455] where motion data indicative of a user’s facial expressions indicating at least the depth of each of a plurality of parts of the face of the distributor, and the coordinates and angles of the head of the distributor is used by a server device to generate digital avatars that have facial expressions, move and talk like each individual user. This content is unique based on what the current user is doing based on their detected facial expressions and audio data. This presentation is presented to the user and other user’s such as in video 300). WATANABE fails to explicitly teach wherein the unique presentation of digital content uses muted colors. However, it would have been obvious to use colors in general to represent the avatars, as well as a single muted color as deemed appropriate by the program. Therefore it would have bene obvious to one of ordinary skill in the art at the time of filing to modify WATANABE’s avatar to use muted colors as a mere design choice, there being no criticality and no unexpected results from using muted colors when representing a user in an avatar.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN A BOYD whose telephone number is (571)270-7503. The examiner can normally be reached Mon - Fri 8:00 - 5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ke Xiao can be reached at (571) 272-7776. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JONATHAN A BOYD/Primary Examiner, Art Unit 2627