Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 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 1-20 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.
For claims 1, 11, 20, the applicant recites the retraining of the one or more recognition models and retraining one or more compliance models. The language reciting the training of the recognition models has been canceled from the claim so it is not clear if the model is trained such that it can be retrained as the claim recites. The recognition model is not claimed as being trained or even as being trainable, such that it could be retrained. Does the claim scope inherently require a step of training the recognition models or is the retraining step really just a step of training? This is not clear and renders the claim indefinite. The same is noted for the retraining of one or more compliance models. No compliance models were claimed as being trained so that they could be retrained. Does the claim scope inherently require a step of training the compliance models or is the retraining step really just a step of training? This also renders the claim indefinite.
For claim 2, 12, the claim recites the retraining of the compliance models based on the recognition models and recites the use of the model to evaluate content based on licensing rules for the portions of the protected content. Is this a second retraining step or is this actually referring to the same step that is already recited in claim 1? Claim 1 already recites what has been recited in claim 2 so it is not clear if the claimed retraining is the same as is found in claim 1 or is another retraining step. This is not clear and renders the claim indefinite. The examiner is concerned about claim 2 possibly being an improper dependent claim due to not further limiting claim 1. Clarification and/or correction is requested.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
The claims recite a method, a network computer, and a non-transitory storage media. The claims pass step 1 of the eligibility analysis.
For step 2A, the claim(s) recite(s) an abstract idea of managing media content licenses by enforcing licensing rules based on analysis of media content.
Using claim 1 as a representative example that is applicable to claims 11 and 20, the abstract idea is defined by the elements of:
determining one or more recognition models that misclassified one or more portions of media content as protected content or as non-protected content;
identifying the one or more classified portions of the media content that are non-compliant with one or more licensing rules;
reclassification of the one or more identified portions of the media content and authorized training assets, and
media content and the one or more retrained recognition models,
evaluate compliance of the one or more identified portions of the media content with the one or more licensing rules; and
granting an authorized media license to the one or more portions of the media content that are compliant with the one or more licensing rules and classified as the protected content
The above limitations are reciting a process by which media content (claim scope includes intellectual property such as copyrights trademarks, personality rights) is evaluated for compliance with licensing rules to identify protected and non-protected media content and providing an authorized media license to one or more parties. The concept of having a media licensing agreement (a legal contract) and enforcing licensing rules for the media content, is reciting a legal interaction that falls into the category of being a certain method of organizing human activities. Granting of media licenses is itself a legal act/interaction that is enforcing or using property rights granted to a media creator in a legal contract. Protecting media content that is content that is able to be trademarked, copyrighted, or that is a personality right, is something that can be practiced by people. The examiner notes that before the invention of computers people were the ones that monitored and protected their protected media content, such as tightly controlling the use of the persona such as Mickey Mouse (which has since fallen into the public domain) by the Walt Disney Corporation. The claimed abstract idea is found to be reciting a certain method of organizing human activities for the above reasons.
The additional elements of claim 1 are the recitation to retraining the recognition model(s) and the retraining of the compliance model(s). For claim 11, the additional elements are the memory that includes instructions, one or more processors, the retraining of the recognition model(s) and the retraining of the compliance model(s). For claim 20, the additional elements are the non-transitory storage media that stores instructions to perform the steps that defines the abstract idea, the retraining the recognition model(s) and the retraining of the compliance model(s).
The additional elements are reciting the use of a generic computer(s) to perform the steps that defines the abstract idea (claims 11, 20) and the retraining of a model(s) (interpreted as being the use of machine learning) in claims 1, 11, 20.
This judicial exception is not integrated into a practical application (2nd prong of eligibility test for step 2A) because the additional elements of the claim when considered individually and with the claim as a whole, amounts to the use of computing devices with a processor and memory that are being used as a tool to execute the abstract idea, see MPEP 2106.05(f), with a general link to the use of machine learning where a model is trained and/or retrained. The claim is instructing one to practice the abstract idea by claiming computer implementation via a processor and memory storing instructions to perform steps that define the abstract idea. This does not provide for integration into a practical application. The claimed retraining of the compliance model and the recognition model(s) is reciting by definition what machine learning is and is interpreted to be another link to computer implementation for the abstract idea, and/or can be considered as a link to a particular technological environment, see MPEP 2106.05(h). The retraining of the models is recited at a high level of generality and is taken as a general link to the use of machine learning models that are trained and retrained. Machine learning is the process of creating a model and training and retraining the model to improve accuracy. In this regard the applicant is reciting nothing more than a general link to machine learning, that also inherently involved the use of computers with processor and memory. The use of a computer with a processor and memory and the retraining of a model(s) in combination when viewed with the claim as a whole does not amount to more than an instruction for one to use a computer and retraining of a model to achieve the execution of the abstract idea. This is indicative of the fact that the claim has not integrated the abstract idea into a practical application and therefore the claim is found to be directed to the abstract idea identified by the examiner. See MPEP 2106.05(f), (h).
For step 2B, the claim(s) does/do not include additional elements that when considered individually and with the claim as a whole are sufficient to amount to significantly more than the judicial exception. This is because the additional elements do not amount to more than simply instructing one to practice the abstract idea by using a generically recited computing device with a processor and memory, and a recitation to machine learning (retraining) to perform steps that define the abstract idea. The processor and memory are being used as a tool to execute the abstract idea, see MPEP 2106.05(f), and the claimed retraining of the models a general link to the use of machine learning where a model is trained and/or retrained. The claim as a whole is instructing one to practice the abstract idea by claiming computer implementation via a processor and memory storing instructions. The claimed retraining of the compliance model and the recognition model(s) is reciting what machine learning is by definition and is interpreted to be another link to computer implementation for the abstract idea, and/or can be considered as a link to a particular technological environment, see MPEP 2106.05(h). The retraining of the models is recited at a high level of generality and is taken as a general link to the use of machine learning models that are trained and retrained. Machine learning is the process of creating a model and training and retraining the model to improve accuracy. In this regard the applicant is reciting nothing more than a general link to machine learning, that also inherently involves the use of computers with processor and memory. The use of a computer with a processor and memory and the retraining of a model(s) in combination, when viewed with the claim as a whole, does not amount to more than an instruction for one to use a computer with retraining of a model to achieve the execution of the abstract idea. This does not render the claims as being eligible. See MPEP 2106.05(f), (h). The rationale set forth for the 2nd prong of the eligibility test above is also applicable to step 2B in this regard so no further comments are necessary. This is consistent with the PEG found in the MPEP 2106.
For claims 2, 12, are reciting the retraining of the models as was recited in claim 1. The claimed elements have been treated in the same manner as was set forth for claim 1 because claim 1 already appears to recite what has been claimed. The claims are not eligible for the same reasons. The claims do not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claims are not considered to be eligible.
For claims 3, 13, the abstract idea is being further defined by the determining of the one or more licensing requirements associated with one or more trademarks, etc., the recognizing of the trademarks or brands within the media content, and the evaluation of compliance with license requirements for the trademarks or brands. These elements are reciting more about the abstract idea and the rules used to determine if licenses are to be granted or not. The claimed training and configuring of the models is taken as an additional element that is reciting the use of machine learning. For the same reasons addressed for claims 1, 11, the user of machine learning that involves the training and retraining of a model is a general link to the use of machine learning and is an instruction for one to use a computer to perform the steps that defines the abstract idea. See MPEP 2106.05(f), and (h). The claims do not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claims are not considered to be eligible.
For claims 4, 5, 14, 15, the claim is reciting more about the abstract idea. The license requirements for the trademarks or brands that is claimed, and the types of protected content claimed are all simply further defining the abstract idea of claims 1 and 11. No further additional element has been claimed for consideration. The claims do not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claims are not considered to be eligible.
For claims 6, 16, the claimed generating of a security record associated with a media license, and embedding information within the content (broadly recited and can be anything) are considered to be elements that are defining more about the same abstract idea of claims 1, 11. A record can be created by a person using paper and a person can embed information into the content as claimed. The claim is not reciting any kind of embedding that is occurring, just the broad functional end result to be achieved. This represents more about the abstract idea. The claims do not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claims are not considered to be eligible.
For claims 7, 8, 17, 18, the claims are reciting more about the abstract idea of the claims. Employing information declared by a rights holder that is used to evaluate compliance with requirements is what defines the abstract idea and is the act of using the requirements of a license holder in the claimed analysis. This is reciting more about the abstract idea. The claimed license rules are also part of the abstract idea and is reciting information per se that is used in the claimed analysis. This defines more about the abstract idea. The claims do not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claims are not considered to be eligible.
For claims 9, 10, 19, the employing of information associated with a creator or rights holder to authorize training asses, and to authorize the media license, are further recitations to the abstract idea. A person can use information from a creator of media content to verbally authorize the use of training assets and to authorize a media license. What has been claimed is further defining the abstract idea of the claims and does not introduce any further additional elements for consideration. The claims do not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claims are not considered to be eligible.
Therefore for the above reasons, claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
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- 20, are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 9, 10, 16, of U.S. Patent No. 12,094, 020.
Although the claims at issue are not identical, they are not patentably distinct from each other because the pending claims are simply broader versions of the patented claims and are anticipated by the patented claims, and/or the claims are considered to be obvious in view of the patented claims.
Anticipation analysis:
For pending claims 1, 11, 20, patented claims 1 9, and 16 anticipates what is claimed. The applicant has amended the independent claims to remove a number of limitations that are found in the patented claims such that the independent claims are broader versions of the patented claims. For example, patented claim 1 discloses:
A method for managing media licenses in a network using one or more processors to execute instructions that are configured to cause actions, (see lines 1-3 of patented claim 1)
comprising:(see lines 13-16 of patented claim 1)
identifying the one or more classified portions of the media content that are non-compliant with one or more licensing rules; (see lines 19-21 of patented claim 1)
retraining the one or more recognition models based on reclassification of the one or more identified portions of the media content and authorized training assets; (see lines 22-24 of patented claim 1) and
retraining one or more compliance models based on the media content and the one or more retrained recognition models, wherein the one or more retrained compliance models evaluate compliance of the one or more identified portions of the media content with the one or more licensing rules; (see lines 27-32 of patented claim 1) and
granting an authorized media license (see lines 33-37 of patented claim 1)
Pending claim 1 is just a broader version of patented claim 1 and is anticipated by patented claim 1. For claims 11, 20, the same mapping applies when one views pending claim 11 as compared to patented claim 9, and when one views pending claim 20 in view of patented claim 16. Pending claim 11 is anticipated by the language of patented claim 9 and pending claim 20 is anticipated by the language of patented claim 16. These claims are just broader versions of the already patented claims and are anticipated by the patented claims.
For claims 2, 12, see patented claim 1, 11, where the claimed limitation is recited. This anticipates what is claimed because claims 1, 11, already recite the claimed retraining step.
For pending claims 6, 16, see patented claims 2, 10. Patented claims 2, 10, recite the claimed generating of a security signature and embedding within the media content. This anticipates what is claimed.
For pending claims 9, 10, 19, see patented claim 1 where the claimed limitation is recited. Patented claim 1 recites that the creator or rights holder authorizes the training assets and that the creator or rights holder authorizes the media license. Claim 1 as patented already includes the recited limitations and is considered to be anticipated by patented claim 1.
Obviousness analysis
For claims 3, 4, 13, 14, the applicant is reciting the use of the system of patented claims 1 or 11, for licenses requirements associated with trademarks or brands based on information from a rights holder, such as branding or protected audio or performance. This is claiming the use of the patented system for use with media content such as trademarks and brands (includes everything that is a product of any kind). While not disclosed, those of ordinary skill in the art recognize that licensed media content includes content such as trademarks and brand information. It would have been obvious to one of ordinary skill in the art to use the patented system of claims 1 and 11 with media content that is representative or associated with a trademark or brands such as colors or trade dress or protected audio or a protected performance, so that the advantages of the system of claims 1, 11, can be realized with trademarks assets and with branding in regards to their licensing.
For claims 5, 15, not disclosed in the patented claims is that the protected content includes personality rights. Similar to claims 3, 4, 13, 14, this is claiming the use of the patented system of claims 1, 11, with personality rights, such as the personality rights of a celebrity or a famous sports athlete. Using the invention of claims 1 and 11 with personality rights would have been obvious to one of ordinary skill in the art, so that the rights of personalities can also be used with the system to protect their content. This yields predictable results.
For claims 7, 17, not disclosed is that the models are configured with information declared by a rights holder. Because the licensing rules are based on the creator or rights holder and the manner in which they want to control their protected media content, it naturally flows hat the models are going to be configured with information relating to the rights holder and the requirements they are setting forth to be used by the system. While not expressly claimed in the patented claims, it would have been obvious to provide the invention of claim 1, 11, with specific requirements set forth by the rights holder, so that the system can execute the wishes of the rights holder. This yields predictable results.
For claims 8, 18, the claim recites that the license rules includes a metric associated with media licenses. This is broad language that is reciting the rules as including anything that is somehow related to a license. While not expressly claimed in the patented claims 1, 11, it would have been obvious to one of ordinary skill in the art to have the license rules includes information related to a license, such as the actual rules (metrics) that are used to grant the license. This would have been obvious to one of ordinary skill in the art and yields predictable results.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Wold et al. (20230244710) teaches a system and method for identifying media content that may be protected content. Machine learning is used for classification of received media content (paragraph 025, 026) and the media content is subsequently identified (paragraph 036) using digital signatures and other data, so that proper licensing rates can be determined for the content based on licensing agreements (paragraph 028). Wold teaches the use of a model to determine content that is protected, but does not teach that machine learning is used for evaluation of the licensing rules in combination with the claimed retraining and evaluation of the content for compliance so that a license can be granted.
Ikezoye at al. (20220027407) and Wold (20210357451) teach a system similar to that of Wold et al. (20230244710) that classifies and identifies protected content that is subject to licensing agreements. This is relevant to the claimed invention.
Lonstein et al. (20140283123) teaches in paragraph 013 that media content is known to have digital signatures such as fingerprints or watermarks that is embedded in the media. This is relevant to the subject matter of claim 2.
Lee et al. (20200176117) discloses in paragraph 077 that machine learning can be made to be more accurate by using results from a model and retraining the model, so that the learning of the model continues to improve. This is representative of the well-known aspect to machine learning that is retraining a model.
Montler et al. (20230058710) teaches a media content licensing system that determines of medic content is protected or not, and that can generate licenses for users when protected content is identified. This is relevant to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DENNIS WILLIAM RUHL whose telephone number is (571)272-6808. The examiner can normally be reached M-F 7am-3:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jessica Lemieux can be reached at 5712703445. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DENNIS W RUHL/ Primary Examiner, Art Unit 3626