DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
2. A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 3-9-26 has been entered.
Response to Arguments
3. Applicant’s arguments filed 3-9-26 have been fully considered but are moot in view of the new ground(s) of rejection(s).
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Double Patenting
4. A rejection based on double patenting of the "same invention" type finds its support in the language of 35 U.S.C. 101 which states that "whoever invents or discovers any new and useful process ... may obtain a patent therefor ..." (Emphasis added). Thus, the term "same invention," in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957); and In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970).
5. 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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
6. Claims 1-22 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,736,766 in view of Filev et al., US 9,219,790. Although the conflicting claims are not identical, they are not patentably distinct from each other because claims 1-22 of the application is merely broader in scope than patented claims 1-20 with the addition limitations of user accounts and updating advertisement data associated with the advertisements for the user account and of server devices for analyzing the data.
However, in the same field of endeavor, Filev teaches of user accounts and updating advertisement data associated with the advertisements for the user account and of server devices for analyzing the data (See col.8 lines 18-67; col.15 lines 5-43 targeted ads are selected for the user profile/account from the updated behavior and tracked data of the user).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Patent No. 11,736,766 to have incorporated the teachings of Filev for the mere benefit of better targeting ads to viewers.
Claims 1-22 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,412,295 in view of Filev et al., US 9,219,790. Although the conflicting claims are not identical, they are not patentably distinct from each other because claims 1-22 of the application is merely broader in scope than patented claims 1-20 with the addition limitations of user accounts and updating advertisement data associated with the advertisements for the user account and of server devices for analyzing the data.
However, in the same field of endeavor, Filev teaches of user accounts and updating advertisement data associated with the advertisements for the user account and of server devices for analyzing the data (See col.8 lines 18-67; col.15 lines 5-43 targeted ads are selected for the user profile/account from the updated behavior and tracked data of the user).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Patent No. 11,736,766 to have incorporated the teachings of Filev for the mere benefit of better targeting ads to viewers.
Claims 1-22 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 12,096,071 in view of Filev et al., US 9,219,790. Although the conflicting claims are not identical, they are not patentably distinct from each other because claims 1-22 of the application is merely broader in scope than patented claims 1-24 with the addition limitations of user accounts and updating advertisement data associated with the advertisements for the user account and of server devices for analyzing the data.
However, in the same field of endeavor, Filev teaches of user accounts and updating advertisement data associated with the advertisements for the user account and of server devices for analyzing the data (See col.8 lines 18-67; col.15 lines 5-43 targeted ads are selected for the user profile/account from the updated behavior and tracked data of the user).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Patent No. 11,736,766 to have incorporated the teachings of Filev for the mere benefit of better targeting ads to viewers.
Claim Rejections - 35 USC § 103
7. 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 of this title, 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.
8. Claims 1-22 are rejected under 35 U.S.C. 103 as being unpatentable over Knox, US 2018/0109828 in view of Collins et al., US 2016/0037213, in further view of Filev, US 9,219,790, and in further view of Tushinskiy et al., US 2021/0217413.
Regarding claim 1, Knox teaches of a method comprising: receiving audio data captured by an audio reception device based on an event for content (See Figs. 10-13; [0051], [0063], [0094], [0100], [0104], [0111], [0114], and [0127]-[0129] microphone receives audio based on and during the media presentation); and based on a comparison of a first audio data to a second audio from before or after the event, causing an update to data associated with selection of content for a user account (See Figs. 10-13; [0051], [0063], [0074]-[0075], [0094], [0100], [0104], [0111], [0114], and [0127]-[0129] compares first metrics at a first time to metrics at a second time before or after the media presentation where the metrics include sound and audio; [0074], [0133], [0135] and [0150]-[0151] update to data/profile/account for selection of content).
Knox is silent with respect to the comparing being that of a noise level and with respect to the event being of an advertising event.
However, in the same field of endeavor, Collins teaches of comparing being that of a noise level (See [0029] changes in volume levels) for indicating user engagement of the content) and with respect to the event being of an advertising event ([0034], [0040], and [0053]-[0055]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Know to have incorporated the teachings of Collins for the mere benefit of better characterizing a users interest in a content
Knox in view of Collins is silent with respect to wherein the update is of advertisement data associated with selection of advertisements.
However, in the same field of endeavor, Filev teaches wherein the update is of advertisement data associated with selection of advertisements (See Fig.7; col.8 lines 18-67).
It would have been obvious to one of ordinary skill in the art before the time effective filing date of the claimed invention to have modified the teachings of Knox and Collins to have incorporated the teachings of Filev for the mere benefit of being able to better provide targeted advertisements to a user.
The combination of Knox, Collins, and Filev is silent with respect the audio device being activated based on determining an advertising event during output of content.
However, in the same field of endeavor, Tushinskiy teaches of the audio device being activated based on determining an advertising event during output of content (See [0073]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Knox, Collins, and Filev to have incorporated the teachings of Tushinskiy for the mere benefit of having a trigger for the microphone being turned on such that only audio for desired time periods are taken into consideration as well as for power conservation of only having the microphone turned on for only desired portions.
Regarding claim 2, the combination teaches the method of claim 1, wherein causing the update to the advertisement data associated with the selection of advertisements for the user account comprises sending data associated with the update to a server device associated with the selection of the advertisements for the user account (See Collins, [0039], [0051]-[0074]; Filev, col.8 lines 18-67; col.15 lines 5-43 targeted ads are selected for the user profile/account from the updated behavior and tracked data of the user).
Regarding claim 3, the combination teaches the method of claim 1, wherein receiving the audio data comprises receiving the audio data by a server device external to a user premises where the audio data is captured (See Collins, [0039], [0051]-[0074] server receives/measures and analyzes the data wherein the data includes the audio data; Filev, col.8 lines 18-67; col.15 lines 5-43).
Regarding claim 4, the combination teaches the method of claim 1, wherein receiving the audio data comprises receiving the audio data from one or more of a set top box, a content streaming device, or a gateway device (See Knox, [0063] and [0091], and [0113] presentation device includes television/monitor or the like where microphone receives data during the media presentation; Filev, col.4-5 microphone receives audio from set top box or content streaming device).
Regarding claim 5, the combination teaches the method of claim 1, further comprising determining, based on analyzing the audio data, the first noise level at a first time during the advertisement event and the second noise level at a second time before or after the advertisement event (See Knox, Figs. 10-13; [0051], [0063], [0074]-[0075], [0094], [0100], [0104], [0111], [0114], and [0127]-[0129] compares first metrics at a first time before, during, or after, to metrics at a second time before or after the media presentation where the metrics include sound and audio; Collins, See [0029] changes in volume/noise levels).
Regarding claim 6, the combination teaches the method of claim 1, wherein the update to the advertisement data comprises or is based on at least one of: an advertising metric, an indication of an event, an indication of an interest level in an advertisement associated with the advertising event, an indication of an interest or disinterest in an advertisement associated with the advertising event, an indication of muting or unmuting of an advertisement associated with the advertising event, an indication of a conversation, an indication of a lack of conversation, or an indication of a request for information about an advertisement associated with the advertising event (See Filev, Fig.7; col.8 lines 18-67 which discloses of at least an interest level and engagement levels).
Regarding claim 7, the combination teaches the method of claim 1, wherein the audio reception device comprises or is comprised in one or more of a computing device, a user device, a control device configured to navigate the content, a remote control, a mobile device, a virtual assistant device, or a voice controlled device (See Knox, Figs. 10-13; [0051], [0063], [0074]-[0075], [0094], [0100], [0104], [0111], [0114], and [0127]-[0129] which discloses a microphone and camera for reception of the audio).
Regarding claim 8, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 1.
Regarding claim 9, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 2.
Regarding claim 10, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 3.
Regarding claim 11, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 4.
Regarding claim 12, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 5.
Regarding claim 13, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 6.
Regarding claim 14, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 7.
Regarding claim 15, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 1.
Regarding claim 16, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 2.
Regarding claim 17, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 3.
Regarding claim 18, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 4.
Regarding claim 19, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 1.
Regarding claim 20, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 2.
Regarding claim 21, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 3.
Regarding claim 22, the claim has been analyzed and rejected for the same reasons set forth in the rejection of claim 4.
Pertinent art
9. Below are pertinent but not relied on prior art:
Chari et al., US 2018/0246692 – [0012] turning on microphone at predefined time slots when an ad begins to broadcast
Higbie et al., US 2017/0103754 – [0271] – identifying markers for when the ad should be played and when the microphone should be turned on
Contact
10. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ricky Chin whose telephone number is 571-270-3753. The examiner can normally be reached on M-F 8:30-6:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Bruckart can be reached on 571-272-3982. The fax phone number for the organization where this application or proceeding is assigned is 703-872-9306.
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/Ricky Chin/
Primary Examiner
AU 2424
(571) 270-3753
Ricky.Chin@uspto.gov
Prosecution Insights