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 .
Status of Claims
This action is in reply to the communications filed on July 21, 2024, and November 25, 2024. The applicant’s claim for benefit of application 17322623, filed May 17, 2021, and 15491959, filed April 19, 2017, and provisional application 62325870, filed April 21, 2016, has been received and acknowledged.
The preliminary amendment filed November 25, 2024, has been received and entered.
Claims 1-20 are currently pending and have been examined.
Examiner’s Note: The Examiner notes that claims 1-20 do not recite any of the judicial exceptions enumerated in the MPEP and thus are patent eligible under 35 USC 101. Specifically, the independent claims recite digitizing music, associating (i.e., adding/storing) information to the digitized music, and distributing (i.e., transmitting) the digitized music and do not recite an abstract idea.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-2, 4-13, and 15-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 12,045,870 B2 (hereinafter “the ‘870 patent”).
Although the claims at issue are not identical, they are not patentably distinct from each other because the processes performed by the systems and methods of the instant application would necessarily be performed by the systems and methods of the ‘870 patent.
For example, independent claim 1 in the instant application recites a method for creating and distributing music comprising the steps of:
digitizing music and creating a file containing said digitized music;
associating with said digitized music information descriptive of the content, character and quality corresponding with the digitized music so that said music may be properly appraised as to its monetary value and prepared for marketing by its creator or those associated with its creator;
distributing said digitized music to an audience intended to elicit interest in purchasing said digitized music, either for entertainment purposes or for redistributing or brokering to other third person audiences; and
wherein copyrights associated with said digitized music are tracked to ensure that all creators and all licensing agents or owners associated with said digitized music participate in any royalties distributed therefrom.
For example, independent claim 6 of the ‘870 patent recites (with emphasis on limitations that read on the limitations in claim 1 of the instant application) a method for creating and distributing music compilations comprising:
digitizing music and creating a file containing said digitized music for storage in digital memory using an analog transducer and associated analog to digital converters;
storing a digitized music file containing music data files representing said stored digitized music compilations in digital memory;
supporting a second data file associated with said stored digitized music compilations containing information descriptive of the content determined by a musician corresponding with the stored digitized music compilations so that said music compilation is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator;
transmitting, through a data transmission channel, said user uploaded stored digitized music compilations to an audience for distribution and purchase via download channels for entertainment purposes, collaborative editing, including redistributing and brokering to other third person audiences;
live streaming content through said transmission channels;
electronically storing copyrights associated with said stored digitized music compilations maintained by said user so that said user shares said collaborative edition with third party users to validate that all creator and all licensing agents or owners associated with said digitized music compilations participate in any royalties distributed therefrom;
compiling a copyright of digitized music compilations is consisting of a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists and assign a monetization value so that copyright residual payment are distributed according to said accounting established by said shopping cart;
negotiating copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention; and
wherein automatically apportioning copyright royalties to each copyright creator involved in the creative process and wherein each creation is subject to an auction to set a market rate for each of said contributions.
Claim 6 of the ‘870 patent differs from claim 1 of the instant application in that it further recites live streaming content through said transmission channels; electronically storing copyrights associated with said stored digitized music compilations maintained by said user so that said user shares said collaborative edition with third party users to validate that all creator and all licensing agents or owners associated with said digitized music compilations participate in any royalties distributed therefrom; compiling a copyright of digitized music compilations is consisting of a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists and assign a monetization value so that copyright residual payment are distributed according to said accounting established by said shopping cart; and negotiating copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify claim 6 of the ‘870 patent by removing the excess limitations and resulting generally in the claims of the instant application since the claims of the instant application and the claims of the ‘870 patent perform similar functions.
Claims 8 and 15 of the instant application recite a computer and a method reciting similar limitations and are similarly rejected over claims 1 and 6 of the ‘870 patent.
With regard to claim 2 of the instant application, claim 2 recites wherein negotiated copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention. Claims 12 and 19 of the instant application recite similar limitations. Claims 5 and 10 of the ‘870 patent also recite these limitations.
With regard to claim 4 of the instant application, claim 4 recites wherein said digitized music is created by at least one audio and at least one video program and can convert an audio download into a derivative piece of media. Claims 9 and 16 of the instant application recite similar limitations. Claims 2 and 7 of the ‘870 patent also recite these limitations.
With regard to claim 5 of the instant application, claim 5 recites wherein said at least one audio and said at least one video program is used to interface with said audience. Claims 10 and 17 of the instant application recite similar limitations. Claims 3 and 8 of the ‘870 patent also recite these limitations.
With regard to claim 6 of the instant application, claim 6 recites wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart, and wherein said online shopping cart features bids for said artist's plurality of works. Claim 9 of the ‘870 patent also recites these limitations.
With regard to claim 7 of the instant application, claim 7 recites live streaming content through said data transmission channel. Claim 13 of the instant application recites similar limitations. Claim 6 of the ‘870 patent also recites these limitations.
With regard to claim 11 of the instant application, claim 11 recites wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart. Claim 18 of the instant application recites similar limitations. Claim 4 of the ‘870 patent also recites these limitations.
Claim 8 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,042,927 B2 (hereinafter “the ‘927 patent”).
Although the claims at issue are not identical, they are not patentably distinct from each other because the processes performed by the systems and methods of the instant application would necessarily be performed by the system of the ‘927 patent.
For example, independent claim 8 in the instant application recites a computer for creating and distributing music compilations comprising:
a stored digitized music file containing music data files representing said stored digitized music compilations for storage in digital memory;
a second stored data file associated with said stored digitized music compilations containing information descriptive of the content determined by a musician corresponding with the stored digitized music compilations so that said music compilation is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator;
a data transmission channel for distributing user uploaded stored digitized music compilations;
wherein copyrights associated with said stored digitized music compilations are stored electronically by a user and maintained by said user so that said user may shares said collaborative edition with third party users to ensure that all creator and all licensing agents or owners associated with said digitized music compilations participate in any royalties distributed therefrom; and
wherein said copyright royalties are automatically apportioned to each copyright creator involved in the creative process and wherein each creation is subject to an auction to set a market rate for each of said contributions.
For example, independent claim 1 of the ‘927 patent recites (with emphasis on limitations that read on the limitations in claim 8 of the instant application) an apparatus for creating and distributing music compilations comprising:
an analog transducer and associated analog to digital converters for digitizing music and creating a file containing said digitized music for storage in digital memory;
said stored digitized music file containing music data files representing said stored digitized music compilations for storage in digital memory;
a second data file associated with said stored digitized music compilations containing information descriptive of the content, character and quality based on a critique score determined by a musician corresponding with the stored digitized music compilations so that said music compilation is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator;
a data transmission channel for distributing said user uploaded stored digitized music compilations to an audience for purchase via download channels, either for entertainment purposes, collaborative editing, or for redistributing or brokering to other third person audiences;
wherein copyrights associated with said stored digitized music compilations are stored electronically by a user and maintained by said user so that said user may share said collaborative edition with third party users to insure that all creator and all licensing agents or owners associated with said digitized music compilations participate in any royalties distributed therefrom;
wherein said stored digitized music compilations is comprised of a copyright compilation consisting of a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists and assign a monetization value so that copyright residual payment are distributed according to said accounting established by said shopping cart;
wherein negotiated copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention; and
wherein said copyright royalties are automatically apportioned to each copyright creator involved in the creative process and wherein each creation is subject to an auction to set a market rate for each of said contributions.
Claim 1 of the ‘927 patent differs from claim 8 of the instant application in that it further recites an analog transducer and associated analog to digital converters for digitizing music and creating a file containing said digitized music for storage in digital memory; wherein said stored digitized music compilations is comprised of a copyright compilation consisting of a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists and assign a monetization value so that copyright residual payment are distributed according to said accounting established by said shopping cart; wherein negotiated copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify claim 1 of the ‘927 patent by removing the excess limitations and resulting generally in the claims of the instant application since the claims of the instant application and the claim of the ‘927 patent perform similar functions.
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 4, 9, and 16 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.
Claim 4 recites “can convert an audio download into a derivative piece of media.” This limitation is unclear. First, it is unclear what entity performs this function. Is it the audio program, the video program, something else? Further, the metes and bounds of this claim are unclear because a person having ordinary skill in the art cannot determine how to avoid infringement. Specifically, the phrase “can convert” is unclear. In order to infringe, must the audio download necessarily be converted into a derivative piece of media or must the recited program merely be capable of converting the audio download into a derivative piece of media. For purposes of examination, the Examiner is interpreting this portion of claim 4 as reciting that the recited program is capable of converting the audio download into a derivative piece of media.
Claims 9 and 16 are rejected for similar reasons.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over US 2008/0228578 A1 to Mashinsky (hereinafter “Mashinsky”), in view of US 2013/0275275 A1 to Lemmons et al. (hereinafter “Lemmons”).
Claim 1: Mashinsky discloses a “system and method for the exchanging, distributing and managing digital content, along with providing users with the ability to sell and transfer digital rights of products or services purchased from other users, wherein the system and method are used to manage synchronization and the use of applications, web services and media in combination with different digital rights management (DRM) solutions to authenticate and authorize such transactions.” (See Mashinsky, at least Abstract). Mashinsky further discloses:
digitizing music and creating a file containing said digitized music (See Mashinsky, at least para. [0007], artist produces a musical composition and digitizes it; para. [0042], system manages the digitization of the content; para. [0035], person records a digital video clip and lists the video clip with the central real-time exchange; para. [0082], content owners and sellers upload their content to the central real-time exchange and their files (i.e., content) can be directed to interested parties);
distributing said digitized music to an audience intended to elicit interest in purchasing said digitized music, either for entertainment purposes or for redistributing or brokering to other third person audiences (See Mashinsky, at least para. [0035], person wants to list their digital video clip on as many popular sites as possible and is also willing to distribute the video for free but wants to generate some level of advertising revenue; user lists digital video clip with central real-time exchange and then the exchange will bundle the clip with specific ads via the internet to different search engines and other socially oriented websites; exchange would manage both the revenues generated by the digital video clip and also the revenues generated from viewer fees); and
wherein copyrights associated with said digitized music are tracked to ensure that all creators and all licensing agents or owners associated with said digitized music participate in any royalties distributed therefrom (See Mashinsky, at least para. [0036], central real-time exchange includes a billing and settlement module that stores contractual, billing, settlement, notification, and reporting information; central real-time exchange performs all billing functions such as charging , collecting and crediting the appropriate parties against their transactions; central real-time exchange calculates and divides a revenue stream among the different parties, manage allocations, and issue payments to all the parties).
Mashinsky does not expressly disclose associating with said digitized music information descriptive of the content, character and quality corresponding with the digitized music so that said music may be properly appraised as to its monetary value and prepared for marketing by its creator or those associated with its creator.
However, Lemmons discloses a “content marketplace where digital content can be offered for use by licensees in exchange for a license from a licensor.” (See Lemmons, at least Abstract). Lemmons further discloses associating with said digitized music information descriptive of the content, character and quality corresponding with the digitized music so that said music may be properly appraised as to its monetary value and prepared for marketing by its creator or those associated with its creator (See Lemmons, at least para. [0055], licensor can add additional content attributes and/or descriptions of the digital content; content attributes can include type of content (i.e., music), keywords associated with the digital content, descriptions of content medium, description of the content itself such as type of music, etc.; para. [0056], digital content is indexed using the content attributes).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky the ability of associating with said digitized music information descriptive of the content, character and quality corresponding with the digitized music so that said music may be properly appraised as to its monetary value and prepared for marketing by its creator or those associated with its creator as disclosed by Lemmons since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order “to help licensees find the digital content.” (See Lemmons, at least para. [0024]).
The Examiner notes that the claim limitation “so that said music may be properly appraised as to its monetary value and prepared for marketing by its creator or those associated with its creator” appears to be non-functional descriptive language or an intended use of the information. This limitation does not further modify the structural limitations of the claim as currently recited and does not result in a structural difference between the claimed invention and the prior art. If the prior art is capable of performing the recited functionality, then the prior art meets the language of the claims. Lemmons is capable of adding additional content attributes and thus meets the language of the claims.
The Examiner notes that the claim limitation “either for entertainment purposes or for redistributing or brokering to other third person audiences” appears to be non-functional descriptive language or an intended use of the digitized music. This limitation does not further modify the structural limitations of the claim as currently recited and does not result in a structural difference between the claimed invention and the prior art. If the prior art is capable of performing the recited functionality, then the prior art meets the language of the claims. Mashinsky is capable of listing the music and thus meets the language of the claims.
Claim 7: The combination of Mashinsky and Lemmons discloses all the limitations of claim 1 discussed above.
Mashinsky does not expressly disclose live streaming content through said data transmission channel.
However, Lemmons discloses live streaming content through said data transmission channel (See Lemmons, at least para. [0032], digital content host may be a video streaming site and provides digital content to website visitors).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky the ability of live streaming content through said data transmission channel as disclosed by Lemmons since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order “to help licensees find the digital content.” (See Lemmons, at least para. [0024]).
Claims 2-3 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Mashinsky in view of Lemmons as applied to claim 1 above, and further in view of US 2013/0103592 A1 to Shenk et al. (hereinafter “Shenk”).
Claim 2: The combination of Mashinsky and Lemmons discloses all the limitations of claim 1 discussed above.
Neither Mashinsky nor Lemmons expressly discloses wherein negotiated copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention.
However, Shenk discloses providing a “method for negotiating a license to a media item by a customer for a commercial use, including maintaining by a digital media licensing server a catalog of media items that are available to be licensed, and a database of records.” (See Shenk, at least Abstract). Shenk further discloses wherein negotiated copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention (See Shenk, at least para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; rights holder window also lists, for each rights holder, the percentage ownership of the rights holder as well as the status of its response to the offer; para. [0062], percentage to each rights holder is negotiated; para. [0077], depending on embodiment, either some or all of the rights holders must respond to the offer).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability wherein negotiated copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention as disclosed by Shenk since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to provide a digital media system “that provides pricing guidance to customers for negotiation of license fees.” (See Shenk, at least para. [0008]).
Claim 3: The combination of Mashinsky and Lemmons and Shenk discloses all the limitations of claim 2 discussed above.
Mashinsky further discloses wherein each creation is subject to an auction to set a market rate for each of said contributions (See Mashinsky, at least para. [0129], price for digital content is determined by agreement or auction.)
Neither Mashinsky nor Lemmons expressly discloses wherein said copyright royalties are automatically apportioned to each copyright creator involved in the creative process.
However, Shenk discloses wherein said copyright royalties are automatically apportioned to each copyright creator involved in the creative process (See Shenk, at least para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; para. [0067], rights holder interface shows revenue to each rights holder for each offer).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability wherein said copyright royalties are automatically apportioned to each copyright creator involved in the creative process as disclosed by Shenk since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to provide a digital media system “that provides pricing guidance to customers for negotiation of license fees.” (See Shenk, at least para. [0008]).
Claim 6: The combination of Mashinsky and Lemmons discloses all the limitations of claim 1 discussed above.
Neither Mashinsky nor Lemmons expressly discloses wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart, and wherein said online shopping cart features bids for said artist's plurality of works.
However, Shenk discloses wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart (See Shenk, at least FIG. 3A and associated text; para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; para. [0067], rights holder interface shows revenue to each rights holder for each offer; para. [0063], rights holder can accept the offer from the customer using a radio control button 306 or make a counter offer by selecting a radio button control 308; para. [0064], rights holder can submit the counteroffer using a submit control 316), and wherein said online shopping cart features bids for said artist's plurality of works (See Shenk, at least FIG. 3A and associated text; para. [0067], rights holder interface shows revenue to each rights holder for each offer; para. [0063], rights holder can accept the offer from the customer using a radio control button 306 or make a counter offer by selecting a radio button control 308; para. [0064], rights holder can submit the counteroffer using a submit control 316; para. [0066], rights holder accepts or declines a final offer made by a customer to license a song for a specific use; customer can make two offers at most; that is, the customer can make an initial offer and then make a final counteroffer to a counteroffer made by the rights holders. In other embodiments, more or less counteroffers can be made by either the customer or the rights holder).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart, and wherein said online shopping cart features bids for said artist's plurality of works as disclosed by Shenk since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to provide a digital media system “that provides pricing guidance to customers for negotiation of license fees.” (See Shenk, at least para. [0008]).
Claims 8, 11-15, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Mashinsky in view of Lemmons and further in view of Shenk.
Claim 8: Mashinsky discloses:
a stored digitized music file containing music data files representing said stored digitized music compilations for storage in digital memory (See Mashinsky, at least para. [0007], artist produces a musical composition and digitizes it; para. [0042], system manages the digitization of the content; para. [0035], person records a digital video clip and lists the video clip with the central real-time exchange; para. [0082], content owners and sellers upload their content to the central real-time exchange and their files (i.e., content) can be directed to interested parties);
a data transmission channel for distributing user uploaded stored digitized music compilations (See Mashinsky, at least para. [0035], person wants to list their digital video clip on as many popular sites as possible and is also willing to distribute the video for free but wants to generate some level of advertising revenue; user lists digital video clip with central real-time exchange and then the exchange will bundle the clip with specific ads via the internet to different search engines and other socially oriented websites; exchange would manage both the revenues generated by the digital video clip and also the revenues generated from viewer fees); and
wherein each creation is subject to an auction to set a market rate for each of said contributions (See Mashinsky, at least para. [0036], central real-time exchange includes a billing and settlement module that stores contractual, billing, settlement, notification, and reporting information; central real-time exchange performs all billing functions such as charging , collecting and crediting the appropriate parties against their transactions; central real-time exchange calculates and divides a revenue stream among the different parties, manage allocations, and issue payments to all the parties).
Mashinsky does not expressly disclose a second stored data file associated with said stored digitized music compilations containing information descriptive of the content determined by a musician corresponding with the stored digitized music compilations so that said music compilation is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator.
However, Lemmons discloses a second stored data file associated with said stored digitized music compilations containing information descriptive of the content determined by a musician corresponding with the stored digitized music compilations so that said music compilation is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator (See Lemmons, at least para. [0055], licensor can add additional content attributes and/or descriptions of the digital content; content attributes can include type of content (i.e., music), keywords associated with the digital content, descriptions of content medium, description of the content itself such as type of music, etc.; para. [0056], digital content is indexed using the content attributes);
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky the ability of a second stored data file associated with said stored digitized music compilations containing information descriptive of the content determined by a musician corresponding with the stored digitized music compilations so that said music compilation is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator as disclosed by Lemmons since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order “to help licensees find the digital content.” (See Lemmons, at least para. [0024]).
The Examiner notes that the claim limitation “so that said music is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator” appears to be non-functional descriptive language or an intended use of the information. This limitation does not further modify the structural limitations of the claim as currently recited and does not result in a structural difference between the claimed invention and the prior art. If the prior art is capable of performing the recited functionality, then the prior art meets the language of the claims. Lemmons is capable of adding additional content attributes and thus meets the language of the claims.
Neither Mashinsky nor Lemmons expressly discloses wherein copyrights associated with said stored digitized music compilations are stored electronically by a user and maintained by said user so that said user may shares said collaborative edition with third party users to ensure that all creator and all licensing agents or owners associated with said digitized music compilations participate in any royalties distributed therefrom; and wherein said copyright royalties are automatically apportioned to each copyright creator involved in the creative process.
However, Shenk discloses wherein copyrights associated with said stored digitized music compilations are stored electronically by a user and maintained by said user so that said user may shares said collaborative edition with third party users to ensure that all creator and all licensing agents or owners associated with said digitized music compilations participate in any royalties distributed therefrom (See Shenk, at least FIG. 3A and associated text; para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; para. [0067], rights holder interface shows revenue to each rights holder for each offer; para. [0063], rights holder can accept the offer from the customer using a radio control button 306 or make a counter offer by selecting a radio button control 308; para. [0064], rights holder can submit the counteroffer using a submit control 316); and wherein said copyright royalties are automatically apportioned to each copyright creator involved in the creative process (See Shenk, at least para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; para. [0067], rights holder interface shows revenue to each rights holder for each offer).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability wherein copyrights associated with said stored digitized music compilations are stored electronically by a user and maintained by said user so that said user may shares said collaborative edition with third party users to ensure that all creator and all licensing agents or owners associated with said digitized music compilations participate in any royalties distributed therefrom; and wherein said copyright royalties are automatically apportioned to each copyright creator involved in the creative process as disclosed by Shenk since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to provide a digital media system “that provides pricing guidance to customers for negotiation of license fees.” (See Shenk, at least para. [0008]).
Claim 11: The combination of Mashinsky and Lemmons and Shenk discloses all the limitations of claim 8 discussed above.
Neither Mashinsky nor Lemmons expressly discloses wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart.
However, Shenk discloses wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart (See Shenk, at least FIG. 3A and associated text; para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; para. [0067], rights holder interface shows revenue to each rights holder for each offer; para. [0063], rights holder can accept the offer from the customer using a radio control button 306 or make a counter offer by selecting a radio button control 308; para. [0064], rights holder can submit the counteroffer using a submit control 316).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart as disclosed by Shenk since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to provide a digital media system “that provides pricing guidance to customers for negotiation of license fees.” (See Shenk, at least para. [0008]).
Claim 12: The combination of Mashinsky and Lemmons and Shenk discloses all the limitations of claim 11 discussed above.
Neither Mashinsky nor Lemmons expressly discloses wherein negotiated copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention.
However, Shenk discloses wherein negotiated copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention (See Shenk, at least para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; rights holder window also lists, for each rights holder, the percentage ownership of the rights holder as well as the status of its response to the offer; para. [0062], percentage to each rights holder is negotiated; para. [0077], depending on embodiment, either some or all of the rights holders must respond to the offer).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability wherein negotiated copyright royalty divisions between various contributing artists are determined by artist representatives through use of the present invention as disclosed by Shenk since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to provide a digital media system “that provides pricing guidance to customers for negotiation of license fees.” (See Shenk, at least para. [0008]).
Claim 13: The combination of Mashinsky and Lemmons and Shenk discloses all the limitations of claim 8 discussed above.
Mashinsky does not expressly disclose wherein content is livestreamed via said data transmission channel.
However, Lemmons discloses wherein content is livestreamed via said data transmission channel (See Lemmons, at least para. [0032], digital content host may be a video streaming site and provides digital content to website visitors).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the system and method of Mashinsky-Lemmons-Shenk the ability wherein content is livestreamed via said data transmission channel as further disclosed by Lemmons since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order “to help licensees find the digital content.” (See Lemmons, at least para. [0024]).
Claim 14: The combination of Mashinsky and Lemmons and Shenk discloses all the limitations of claim 8 discussed above.
Mashinsky further discloses wherein said user uploaded stored digitized music compilations are distributed to an audience for purchase via download channels, for entertainment purposes, collaborative editing, including redistributing and brokering to other third person audiences and wherein said collaborative editing is facilitated by third party music creators seeking collaboration (See Mashinsky, at least para. [0035], person wants to list their digital video clip on as many popular sites as possible and is also willing to distribute the video for free but wants to generate some level of advertising revenue; user lists digital video clip with central real-time exchange and then the exchange will bundle the clip with specific ads via the internet to different search engines and other socially oriented websites; exchange would manage both the revenues generated by the digital video clip and also the revenues generated from viewer fees).
The Examiner notes that the claim limitation “for purchase via download channels, for entertainment purposes, collaborative editing, including redistributing and brokering to other third person audiences and wherein said collaborative editing is facilitated by third party music creators seeking collaboration” appears to be non-functional descriptive language or an intended use of the uploaded music compilations. This limitation does not further modify the structural limitations of the claim as currently recited and does not result in a structural difference between the claimed invention and the prior art. If the prior art is capable of performing the recited functionality, then the prior art meets the language of the claims. Mashinsky is capable of distributing the user uploaded music compilation via download channels and thus meets the language of the claims.
Claim 15: Mashinsky discloses:
storing digitized music and creating a file containing said digitized music for storage in digital memory (See Mashinsky, at least para. [0007], artist produces a musical composition and digitizes it; para. [0042], system manages the digitization of the content; para. [0035], person records a digital video clip and lists the video clip with the central real-time exchange; para. [0082], content owners and sellers upload their content to the central real-time exchange and their files (i.e., content) can be directed to interested parties);
storing a digitized music file containing music data files representing said stored digitized music compilations in digital memory (See Mashinsky, at least para. [0007], artist produces a musical composition and digitizes it; para. [0042], system manages the digitization of the content; para. [0035], person records a digital video clip and lists the video clip with the central real-time exchange; para. [0082], content owners and sellers upload their content to the central real-time exchange and their files (i.e., content) can be directed to interested parties);
transmitting, through a data transmission channel, user uploaded stored digitized music compilations to an audience for distribution and purchase via download channels for entertainment purposes, collaborative editing, including redistributing and brokering to other third party audiences (See Mashinsky, at least para. [0035], person wants to list their digital video clip on as many popular sites as possible and is also willing to distribute the video for free but wants to generate some level of advertising revenue; user lists digital video clip with central real-time exchange and then the exchange will bundle the clip with specific ads via the internet to different search engines and other socially oriented websites; exchange would manage both the revenues generated by the digital video clip and also the revenues generated from viewer fees); and
wherein each creation is subject to an auction to set a market rate for each of said contributions (See Mashinsky, at least para. [0129], price for digital content is determined by agreement or auction.).
Mashinsky does not expressly disclose supporting a second data file associated with said stored digitized music compilations containing information descriptive of the content determined by a musician corresponding with the stored digitized music compilations so that said music compilation is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator; and live streaming content through said data transmission channels.
However, Lemmons discloses supporting a second data file associated with said stored digitized music compilations containing information descriptive of the content determined by a musician corresponding with the stored digitized music compilations so that said music compilation is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator (See Lemmons, at least para. [0055], licensor can add additional content attributes and/or descriptions of the digital content; content attributes can include type of content (i.e., music), keywords associated with the digital content, descriptions of content medium, description of the content itself such as type of music, etc.; para. [0056], digital content is indexed using the content attributes); and live streaming content through said data transmission channels (See Lemmons, at least para. [0032], digital content host may be a video streaming site and provides digital content to website visitors).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky the ability of supporting a second data file associated with said stored digitized music compilations containing information descriptive of the content determined by a musician corresponding with the stored digitized music compilations so that said music compilation is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator; and live streaming content through said data transmission channels as further disclosed by Lemmons since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order “to help licensees find the digital content.” (See Lemmons, at least para. [0024]).
The Examiner notes that the claim limitation “so that said music is properly appraised as to its market value, prepared for user download, and prepared for marketing by its creator or those associated with its creator” appears to be non-functional descriptive language or an intended use of the information. This limitation does not further modify the structural limitations of the claim as currently recited and does not result in a structural difference between the claimed invention and the prior art. If the prior art is capable of performing the recited functionality, then the prior art meets the language of the claims. Lemmons is capable of adding additional content attributes and thus meets the language of the claims.
Neither Mashinsky nor Lemmons expressly discloses electronically storing copyrights associated with said stored digitized music compilations maintained by said user so that said user shares said collaborative edition with third party users to validate that all creator and all licensing agents or owners associated with said digitized music compilations participate in any royalties distributed therefrom; wherein said digitized music compilations is comprised of a copyright compilation comprising of a plurality of works from contributing artists; and wherein automatically apportioning copyright royalties to each copyright creator involved in the creative process.
However, Shenk discloses electronically storing copyrights associated with said stored digitized music compilations maintained by said user so that said user shares said collaborative edition with third party users to validate that all creator and all licensing agents or owners associated with said digitized music compilations participate in any royalties distributed therefrom (See Shenk, at least FIG. 3A and associated text; para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; para. [0067], rights holder interface shows revenue to each rights holder for each offer; para. [0063], rights holder can accept the offer from the customer using a radio control button 306 or make a counter offer by selecting a radio button control 308; para. [0064], rights holder can submit the counteroffer using a submit control 316); wherein said digitized music compilations is comprised of a copyright compilation comprising of a plurality of works from contributing artists (See Shenk, at least FIG. 3A and associated text; para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; para. [0067], rights holder interface shows revenue to each rights holder for each offer; para. [0063], rights holder can accept the offer from the customer using a radio control button 306 or make a counter offer by selecting a radio button control 308; para. [0064], rights holder can submit the counteroffer using a submit control 316); and wherein automatically apportioning copyright royalties to each copyright creator involved in the creative process (See Shenk, at least para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; para. [0067], rights holder interface shows revenue to each rights holder for each offer).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability of electronically storing copyrights associated with said stored digitized music compilations maintained by said user so that said user shares said collaborative edition with third party users to validate that all creator and all licensing agents or owners associated with said digitized music compilations participate in any royalties distributed therefrom; wherein said digitized music compilations is comprised of a copyright compilation comprising of a plurality of works from contributing artists; and wherein automatically apportioning copyright royalties to each copyright creator involved in the creative process as disclosed by Shenk since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to provide a digital media system “that provides pricing guidance to customers for negotiation of license fees.” (See Shenk, at least para. [0008]).
Claim 18: The combination of Mashinsky and Lemmons and Shenk discloses all the limitations of claim 15 discussed above.
Neither Mashinsky nor Lemmons expressly discloses wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart.
However, Shenk discloses wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart (See Shenk, at least FIG. 3A and associated text; para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; para. [0067], rights holder interface shows revenue to each rights holder for each offer; para. [0063], rights holder can accept the offer from the customer using a radio control button 306 or make a counter offer by selecting a radio button control 308; para. [0064], rights holder can submit the counteroffer using a submit control 316).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability wherein said digitized music is comprised of a copyright compilation comprising a plurality of works from contributing artists and wherein an online shopping cart is utilized according to the present invention to account for artistic contributions of each of said artists so that copyright residual payments are distributed according to said accounting established by said shopping cart as disclosed by Shenk since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to provide a digital media system “that provides pricing guidance to customers for negotiation of license fees.” (See Shenk, at least para. [0008]).
Claim 19: The combination of Mashinsky and Lemmons and Shenk discloses all the limitations of claim 18 discussed above.
Neither Mashinsky nor Lemmons expressly discloses wherein negotiated copyright royalty divisions between various contributing artists is determined by artist representatives through use of the present invention.
However, Shenk discloses wherein negotiated copyright royalty divisions between various contributing artists is determined by artist representatives through use of the present invention (See Shenk, at least para. [0065], rights holder interface includes a rights holder window that lists each of the rights holders for the song; for example, first part shows the owners of the master, second shows various publishers, etc.; rights holder window also lists, for each rights holder, the percentage ownership of the rights holder as well as the status of its response to the offer; para. [0062], percentage to each rights holder is negotiated; para. [0077], depending on embodiment, either some or all of the rights holders must respond to the offer).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability wherein negotiated copyright royalty divisions between various contributing artists is determined by artist representatives through use of the present invention as disclosed by Shenk since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to provide a digital media system “that provides pricing guidance to customers for negotiation of license fees.” (See Shenk, at least para. [0008]).
Claim 20: The combination of Mashinsky and Lemmons and Shenk discloses all the limitations of claim 18 discussed above.
Neither Mashinsky nor Lemmons expressly discloses wherein said online shopping cart features bids for said artist's plurality of works.
However, Shenk discloses wherein said online shopping cart features bids for said artist's plurality of works (See Shenk, at least FIG. 3A and associated text; para. [0067], rights holder interface shows revenue to each rights holder for each offer; para. [0063], rights holder can accept the offer from the customer using a radio control button 306 or make a counter offer by selecting a radio button control 308; para. [0064], rights holder can submit the counteroffer using a submit control 316; para. [0066], rights holder accepts or declines a final offer made by a customer to license a song for a specific use; customer can make two offers at most; that is, the customer can make an initial offer and then make a final counteroffer to a counteroffer made by the rights holders. In other embodiments, more or less counteroffers can be made by either the customer or the rights holder).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability wherein said online shopping cart features bids for said artist's plurality of works as disclosed by Shenk since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to provide a digital media system “that provides pricing guidance to customers for negotiation of license fees.” (See Shenk, at least para. [0008]).
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Mashinsky in view of Lemmons as applied to claim 1 above, and further in view of US 2012/0047077 A1 to Humphrey (hereinafter “Humphrey”).
Claim 4: The combination of Mashinsky and Lemmons discloses all the limitations of claim 1 discussed above.
Mashinsky further discloses wherein said digitized music is created by at least one audio and at least one video program (See Mashinsky, at least para. [0007], artist produces a musical composition and digitizes it; para. [0042], system manages the digitization of the content; para. [0035], person records a digital video clip and lists the video clip with the central real-time exchange).
Neither Mashinsky nor Lemmons expressly discloses convert an audio download into a derivative piece of media.
However, Humphrey discloses “a virtual studio” and “a method of creating a derivative, multi-track musical work that includes a virtual performance from the public.” (See Humphrey, at least Abstract). Humphrey further discloses convert an audio download into a derivative piece of media (See Humphrey, at least para. [0092], users can use the online recording software embedded in a website to create (record) derivative individual audio files that pertain to the featured artists guide or stem tracks; users may also use recording software embedded on their local computer, or other software including, but not limited to, software that may be proprietary and licensed for use during the offering, to create (record) derivative individual audio files that pertain to the featured artists guide or stem tracks).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons the ability to convert an audio download into a derivative piece of media as disclosed by Humphrey since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to reduce “costs associated with identifying and developing talent” in the music industry “by engaging fans to participate in the creation of the multi-track master, and further promote the industry, from their home studios. In this way, the participating fans naturally become free marketing vehicles.” (See Humphrey, at least para. [0008]).
Claim 5: The combination of Mashinsky and Lemmons and Humphrey discloses all the limitations of claim 4 discussed above.
Mashinsky further discloses wherein said at least one audio and said at least one video program is used to interface with said audience (See Mashinsky, at least para. [0039], central real-time exchange permits third party fulfillment houses of digital content, such as iTunes music distributors or DVD suppliers, such as Netflix, to deliver and distribute content to purchasers of the content).
Claims 9-10 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Mashinsky in view of Lemmons and further in view of Shenk as applied to claims 8 and 15 above, and further in view of Humphrey.
Claims 9 and 16: The combination of Mashinsky and Lemmons and Shenk discloses all the limitations of claims 8 and 15 discussed above.
Mashinsky further discloses wherein said digitized music is created by at least one audio and at least one video program (See Mashinsky, at least para. [0007], artist produces a musical composition and digitizes it; para. [0042], system manages the digitization of the content; para. [0035], person records a digital video clip and lists the video clip with the central real-time exchange).
However, neither Mashinsky nor Lemmons nor Shenk expressly discloses convert an audio download into a derivative piece of media.
However, Humphrey discloses convert an audio download into a derivative piece of media (See Humphrey, at least para. [0092], users can use the online recording software embedded in a website to create (record) derivative individual audio files that pertain to the featured artists guide or stem tracks; users may also use recording software embedded on their local computer, or other software including, but not limited to, software that may be proprietary and licensed for use during the offering, to create (record) derivative individual audio files that pertain to the featured artists guide or stem tracks).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the digital rights system and method of Mashinsky and the content marketplace of Lemmons and the licensing system and method of Shenk the ability to convert an audio download into a derivative piece of media as disclosed by Humphrey since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. One of ordinary skill in the art would have been motivated to do so in order to reduce “costs associated with identifying and developing talent” in the music industry “by engaging fans to participate in the creation of the multi-track master, and further promote the industry, from their home studios. In this way, the participating fans naturally become free marketing vehicles.” (See Humphrey, at least para. [0008]).
Claim 16 is rejected for similar reasons.
Claims 10 and 17: The combination of Mashinsky and Lemmons and Shenk and Humphrey discloses all the limitations of claims 9 and 16 discussed above.
Mashinsky further discloses wherein said at least one audio and said at least one video program is used to interface with said audience (See Mashinsky, at least para. [0039], central real-time exchange permits third party fulfillment houses of digital content, such as iTunes music distributors or DVD suppliers, such as Netflix, to deliver and distribute content to purchasers of the content).
Claim 17 is rejected for similar reasons.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANNE MARIE GEORGALAS whose telephone number is (571)270-1258 E.S.T.. The examiner can normally be reached on Monday-Friday 8:30am-5:00pm.
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/Anne M Georgalas/
Primary Examiner, Art Unit 3689