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 .
DETAILED ACTION
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.
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Claims 1-18,31,32 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12118267. Although the claims at issue are not identical, they are not patentably distinct from each other because the application claim 1 recites a broader version of the method recited in the patent claim 1. Noting that the automatically generating/selecting two or more media items/determining that the event should be promoted in the patent claim 1 requires the input of duration per para 4-6 of the summary of the application.
Additionally, the examiner notes the prior art below teaches the use of duration for automatic clip generation, which may be applicable as a teaching reference.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The following claims 31-38,40-44,47-50 is/are rejected under 35 U.S.C. 103 as being unpatentable over Smalley (US 20180197158 A1), and further in view of Classen et al (US 7825322 B1) and further in view of Komori (US 20090044689 A1).
As per claim 1, Smalley discloses A method of generating a media trailer comprising:
receiving a first input specifying one or more artists ((determining that the user has entered a particular artist per the function in para. 29: the information input by the user to make the preliminary song list which indicates the artists.);
automatically selecting, one or more representative media items by the one or more artists (the flagged song list based on the artists from the preliminary song list);
automatically selecting a clip/at least a portion of each of the representative media items (the preview lists, abstract, and/or the previews of at least a portion of the songs per para 9);; and
generating the media trailer having the duration by automatically arranging the selected portions/clips of the representative media items to generate the media trailer (para 35: presentation of previews of the songs in the master song list to the user).
However Smalley does not disclose
receiving a second input specifying a duration of the media trailer;
automatically selecting, based on the duration
automatically equalizing the audio clips.
Komori teaches a video/audio clip editing system and teaches to input a remix time/duration (para 126,127) as a part of allowing the user to listen to the music that fits their situation (para. 128). It would have been obvious to one skilled in the art to implement the claimed duration input as part of the automatic selection process of Smalley for the purpose of allowing the remixed clips to allowing the user to listen to the music that fits their situation.
Classen teaches that multiple audio clips can be level equalized by automated mixing (para. 12 in background section) for the purpose of having the same perceived loudness. It would have been obvious to one skilled in the art to implement equalization of the audio clips for the purpose of creating the same perceived loudness between clips.
As per claim 2, the method of claim 1, wherein the first and second inputs are received automatically based on pre-determined criteria (the processor based system as taught by each of the prior arts automatically read in the disclosed inputs as part of a digital system, based on predetermined criteria, including any inputs from the user and/or any preexisting software or parameters to facilitate such).
As per claim 3, The method of claim 1, wherein the duration of the media trailer previews defined as a length of time (per the claim 1 rejection as taught by Komori).
As per claim 4,5,16,17, Smalley,Classen,Komori disclose the method of claim 3, but do not limit a time for the duration as taught by Komori. It would have been obvious that the user could decide the desired amount of time including between 5-180 seconds for the purpose of allowing the user to listen to the clip/music that fits their situation as taught by Komori per the claim 1 rejection.
As per claim 6, the method of claim 1, wherein the duration is defined by a number of media items to be included in the media trailer. (the duration defines the length of time and number of media items as desired by the user as taught by Komori).
As per claim 7, the method of claim 1, wherein the media items are one or more of songs, podcast clips, portions of comedy shows, and portions of audiobooks (songs/clips/previews/portions per Smalley, the media items).
As per claim 8, the method of claim 1, wherein the first and second inputs are received from a user (per Komori and per Smalley per the claim 1 rejection).
As per claim 9, the method of claim 1, further comprising receiving [[an]] third input specifying an audience for the media trailer (user preferences Smalley abstract: weighting of database songs against a user's general musical preferences).
As per claim 10, the method of claim 9, wherein the audience is one of a general population and an individual (the user is an individual).
As per claim 11, the method of claim 10, wherein the one or more representative media items are selected by the average music tastes of a general population (Smalley para 52, via the genre basis, where a genre indicates average music tastes).
As per claim 12, the method of claim 10, wherein the one or more representative media items are selected by affinity score if the individual has previously played media items by the artist (Smalley para 29: accessing previously entered preferences from a survey of music preferences; ).
As per claim 13, the method of claim 10, wherein the one or more representative media items are selected by 40 dimensional score if the individual has not previously played media items by the artist (Smalley cited inputs used to decide the clips/songs/previews comprise the ’40 dimension score’, per the ranking in para 33 ).
As per claim 14, the method of claim 1, wherein the clip of each representative media item is selected by one or more of the following: repetition, volume, energy, uniqueness, and voice presence (the genre. Per Smalley para 52, genre basis indicates uniqueness, and voice presence).
As per claim 15, the method of claim 1, wherein the duration of the clip of each representative media item is automatically determined based on the overall duration and number of media items included in the media trailer preview (per the duration as taught by Komori).
As per claim 18, the clips of the representative media items are arranged based on one or more of energy, tempo, popularity, and timbre (per the genre as cited above as disclosed by Smalley).
As per claim 31, one or more computer readable media encoding instructions embodied thereon that, when executed by one or more computing devices, cause the computing device to generate a media trailer by performing a set of operations comprising:
receiving a first input specifying one or more artists;
receiving a second input specifying a duration of the media trailer;
automatically selecting, based on the duration, one or more representative media items by the one or more artists;
automatically selecting a clip/at least a portion of each of the representative media items; and
generating the media trailer having the duration by automatically arranging and
equalizing the clips of the representative media items. (per the claim 1 rejection noting the system cited in the claim 1 rejection is digital and requires software on computer readable media)).
As per claim 32, a system for generating a media trailer comprising a media server comprising:
receiving a first input specifying one or more artists;
receiving a second input specifying a duration of the media trailer;
automatically selecting, based on the duration, one or more representative media items by the one or more artists;
automatically selecting at least a portion of each of the representative media items; and
generating the media trailer having the duration by automatically arranging and equalizing the clips/selected portions of the representative media items. (per claim 1 rejection)
Response to Arguments
The submitted arguments have been considered but are moot in view of the new grounds of rejection.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDER KRZYSTAN whose telephone number is 571-272-7498, and whose email address is alexander.krzystan@uspto.gov
The examiner can usually be reached on m-f 7:30-4:00 est.
If attempts to reach the examiner by telephone or email are unsuccessful, the examiner’s supervisor, Carolyn Edwards can be reached on (571) 270-7136.
The fax phone numbers for the organization where this application or proceeding is assigned are 571-273-8300 for regular communications and 571-273-8300 for After Final communications.
/ALEXANDER KRZYSTAN/Primary Examiner, Art Unit 2653
Examiner Alexander Krzystan
May 23, 2003
