DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application is being examined under the pre-AIA first to invent provisions.
Double Patenting
2. 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 either is anticipated by, or would have been obvious over, the reference claim. 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 §§ 706.02(l) (1) - 706.02(l) (3) 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 USPTO Internet website contains terminal disclaimer forms, which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
3. Claim(s) 2-21 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1 of U.S. Patent No: US 12,096,322 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because Claim(s) 2-21 of the current application matches directly to every element of Claim 1-15, 18-20 of Patent No: US 12,096,322 B2.
4. In addition, specifically Independent Claims 2, 10 & 16, is/are rejected on the ground of nonstatutory double patenting as being rejected over claim(s) 1-15, 18-20 of Patent No: 12,096,322 B2, in view of Schwartz, JR. et al. (US 2013/0061251 A1).
5. The claims are not patentable distinct from each other because it would have been obvious to one having ordinary skill in the art at the time the invention was made to take the teachings of Schwartz, JR. et al. and apply them on the teachings of Application No. 18/886,337 to monitor internet usage.
6. The table below shows only a sample of how each of these claims is anticipated by claims such as Claim 1 of Patent No. US 12,096,322 B2.
Instant Application 18/886,337
Patent No. US 12,096,322 B2
2. A non-transitory computer readable medium comprising instructions which, when executed by one or more processors, cause at least:
1. A non-transitory computer readable medium comprising instructions which, when executed by one or more processors, cause at least:
determining that an application is operating in a background mode at a first identified time;
determining that an application is operating in a background mode at a first identified time;
identifying first media output by the application at the first identified time; and
identifying first media output by the application at the first identified time;
based on identifying that the application is operating in the background mode at the first identified time, crediting exposure to the identified first media as background media at the first identified time.
after identifying that the application is operating in the background mode at the first identified time, crediting exposure to the identified first media as background media at the first identified time;
determining that the application is operating in a foreground mode at a second identified time;
identifying second media output by the application at the second identified time; and
after identifying that the application is operating in the foreground mode at the second identified time, crediting exposure to the identified second media as foreground media at the second identified time.
3. The non-transitory computer readable medium of claim 2, wherein the instructions further cause, when executed by the one or more processors, the determining that the application is operating in the background mode at the first identified time by:
2. The non-transitory computer readable medium of claim 1, wherein the instructions further cause, when executed by the one or more processors, the determining that the application is operating in the background mode at the first identified time by:
identifying a uniform resource location (URL) corresponding to a request; in the background mode.
identifying a uniform resource location (URL) corresponding to a request;
comparing the identified URL to a plurality of URLs, the plurality of URLs corresponding to requests from the application when the application is operating in the background mode; and
comparing the identified URL to a plurality of URLs, the plurality of URLs corresponding to requests from the application when the application is operating in the background mode; and
responsive to determining that the identified URL matches one of the plurality of URLs, determining that the application is operating in the background mode.
responsive to determining that the identified URL matches one of the plurality of URLs, determining that the application is operating in the background mode.
4. The non-transitory computer readable medium of claim 2, wherein the application is a first application, wherein the instructions further cause, when executed by the one or more processors, determining that the application is operating in the background mode by determining that a record for the first application occurs within a time period associated with a foreground execution session of a second application.
3. The non-transitory computer readable medium of claim 1, wherein the application is a first application, wherein the instructions further cause, when executed by the one or more processors, determining that the first application is operating in the background mode by determining that a record for the first application occurs within a time period associated with a foreground execution session of a second application.
5. The non-transitory computer readable medium of claim 2, wherein the instructions further cause, when executed by the one or more processors, determining that the application is operating in the background mode by determining that a time between an event and a previous event for the application is less than an event length threshold.
4. The non-transitory computer readable medium of claim 1, wherein the instructions further cause, when executed by the one or more processors, determining that the application is operating in the background mode by determining that a time between an event and a previous event for the application is less than an event length threshold.
6. The non-transitory computer readable medium of claim 2, wherein the application is a first application, wherein the instructions further cause, when executed by the one or more processors, crediting exposure to media associated with a second application independently of crediting exposure to the identified first media as background media, the second application is operating in the foreground mode at the first identified time while the first application is operating in the background mode.
5. The non-transitory computer readable medium of claim 1, wherein the application is a first application, wherein the instructions further cause, when executed by the one or more processors, crediting exposure to media associated with a second application independently of crediting exposure to the identified first media as background media, the second application is operating in the foreground mode at the first identified time while the first application is operating in the background mode.
7. The non-transitory computer readable medium of claim 2, wherein the instructions further cause, when executed by the one or more processors,
6. The non-transitory computer readable medium of claim 1, wherein the instructions further cause, when executed by the one or more processors:
determining that the application has stopped operating in the background mode by determining that an event corresponds to a resource demand that supersedes a resource demand of the application.
determining that the application has stopped operating in the background mode; and
wherein the determining that the application is operating in the foreground mode at the second identified time is based on the determining that the application has stopped operating in the background mode.
7. The non-transitory computer readable medium of claim 6, wherein the instructions further cause, when executed by the one or more processors, determining that the application has stopped operating in the background mode by determining that an event is associated with a second application, the second application being a privileged application.
8. The non-transitory computer readable medium of claim 6, wherein the instructions further cause, when executed by the one or more processors, determining that the application has stopped operating in the background mode by determining that an event corresponds to a resource demand that supersedes a resource demand of the application.
8. The non-transitory computer readable medium of claim 2, wherein the instructions further cause, when executed by the one or more processors, crediting exposure to the identified first media as background media during a time duration between a request and a previous event corresponding to a start time of a second application executing in a foreground execution mode.
9. The non-transitory computer readable medium of claim 1, wherein the instructions further cause, when executed by the one or more processors, crediting exposure to the identified first media as background media during a time duration between a request and a previous event corresponding to a start time of a second application executing in a foreground execution mode.
9. The non-transitory computer readable medium of claim 2, wherein the instructions further cause, when executed by the one or more processors, crediting exposure to the identified first media as background media during a time duration between a request and a previous event corresponding to background execution of the application when the time duration is less than an event length threshold
10. The non-transitory computer readable medium of claim 1, wherein the instructions further cause, when executed by the one or more processors, crediting exposure to the identified first media as background media during a time duration between a request and a previous event corresponding to background execution of the application when the time duration is less than an event length threshold.
10. An apparatus comprising:
at least one processor; and
memory having stored therein computer readable instructions that, when executed by the at least one processor, cause the apparatus to:
determine that an application is operating in a background mode at a first identified time;
identify first media output by the application at the first identified time; and
based on identifying that the application is operating in the background mode at the first identified time, credit exposure to the identified first media as background media at the first identified time.
11. An apparatus comprising:
at least one processor; and
memory having stored therein computer readable instructions that, when executed by the at least one processor, cause the apparatus to:
determine that an application is operating in a background mode at a first identified time;
identify first media output by the application at the first identified time;
after identifying that the application is operating in the background mode at the first identified time, credit exposure to the identified first media as background media at the first identified time;
determine that the application is operating in a foreground mode at a second identified time;
identify second media output by the application at the second identified time; and
after identifying that the application is operating in the foreground mode at the second identified time, credit exposure to the second media as foreground media at the second identified time.
11. The apparatus of claim 10, wherein the instructions further cause, when executed by the at least one processor, the apparatus to determine that the application is operating in the background mode at the first identified time by: identifying a uniform resource location (URL) corresponding to a request; comparing the identified URL to a plurality of URLs, the plurality of URLs corresponding to requests from the application when the application is operating in the background mode; and responsive to determining that the identified URL matches one of the plurality of URLs, determine that the application is operating in the background mode.
12. The apparatus of claim 11, wherein the instructions further cause, when executed by the at least one processor, the apparatus to determine that the application is operating in the background mode at the first identified time by: identifying a uniform resource location (URL) corresponding to a request; comparing the identified URL to a plurality of URLs, the plurality of URLs corresponding to requests from the application when the application is operating in the background mode; and responsive to determining that the identified URL matches one of the plurality of URLs, determine that the application is operating in the background mode.
12. The apparatus of claim 10, wherein the instructions further cause, when executed by the at least one processor, the apparatus to determine that the application is operating in the background mode by determining that a record for the application occurs within a time period associated with a foreground execution session of a second application.
13. The apparatus of claim 11, wherein the instructions further cause, when executed by the at least one processor, the apparatus to determine that the application is operating in the background mode by determining that a record for the application occurs within a time period associated with a foreground execution session of a second application.
13. The apparatus of claim 10, wherein the instructions further cause, when executed by the at least one processor, the apparatus to determine that the application is operating in the background mode by determining that a time between an event and a previous event for the application is less than an event length threshold
14. The apparatus of claim 11, wherein the instructions further cause, when executed by the at least one processor, the apparatus to determine that the application is operating in the background mode by determining that a time between an event and a previous event for the application is less than an event length threshold.
14. The apparatus of claim 10, wherein the application is a first application, and wherein the instructions further cause, when executed by the at least one processor, the apparatus to credit exposure to media associated with a second application independently of crediting exposure to the identified first media as background media, the second application is operating in the foreground mode at the first identified time while the first application is operating in the background mode.
15. The apparatus of claim 11, wherein the application is a first application, and wherein the instructions further cause, when executed by the at least one processor, the apparatus to credit exposure to media associated with a second application independently of crediting exposure to the identified first media as background media, the second application is operating in the foreground mode at the first identified time while the first application is operating in the background mode.
15. The apparatus of claim 10, wherein the instructions further cause, when executed by the at least one processor, the apparatus to determine that the application has stopped operating in the background mode by determining that an event corresponds to a resource demand that supersedes a resource demand of the application
See Claim 8 Above.
16. The apparatus of claim 11, wherein the instructions further cause, when executed by the at least one processor, the apparatus to: determine that the application has stopped operating in the background mode; and wherein determining that the application is operating in the foreground mode at the second identified time is based on determining that the application has stopped operating in the background mode.Page 3 of 74828-7844-2452.1DOCKET NO.: 2016-1796CON/101900002340PATENT
17. The apparatus of claim 16, wherein the application is a first application, and wherein the instructions further cause, when executed by the at least one processor, the apparatus to determine that the first application has stopped operating in the background mode by determining that an event is associated with a second application, the second application being a privileged application.
16. A method comprising: determining, by executing an instruction with a processor, that an application is operating in a background mode at a first identified time; identifying first media output by the application at the first identified time; and based on identifying that the application is operating in the background mode at the first identified time, crediting, by executing an instruction with the processor, exposure to the identified first media as background media at the first identified time.
18. A method comprising: determining, by executing an instruction with a processor, that an application is operating in a background mode at a first identified time; identifying first media output by the application at the first identified time; after identifying that the application is operating in the background mode at the first identified time, crediting, by executing an instruction with the processor, exposure to the identified first media as background media at the first identified time; determining, by executing an instruction with the processor, that the application is operating in a foreground mode at a second identified time; identifying second media output by the application at the second identified time; and after identifying that the application is operating in the foreground mode at the second identified time, crediting, by executing an instruction with the processor, exposure to the identified second media as foreground media at the second identified time.
17. The method of claim 16, further comprising determining that the application is operating in the background mode at the first identified time by: identifying a uniform resource location (URL) corresponding to a request; comparing the identified URL to a plurality of URLs, the plurality of URLs corresponding to requests from the application when the application is operating in the background mode; and responsive to determining that the identified URL matches one of the plurality of URLs, determine that the application is operating in the background mode.
19. The method of claim 18, further comprising determining that the application is operating in the background mode at the first identified time by: identifying a uniform resource location (URL) corresponding to a request; comparing the identified URL to a plurality of URLs, the plurality of URLs corresponding to requests from the application when the application is operating in the background mode; and responsive to determining that the identified URL matches one of the plurality of URLs, determine that the application is operating in the background mode.
18. The method of claim 16, further comprising determining that the application is operating in the background mode by determining that a record for the application occurs within a time period associated with a foreground execution session of a second application.
See Claim 3 & 13 Above.
19. The method of claim 16, further comprising determining that the application is operating in the background mode by determining that the application is operating in the background mode by determining that a time between an event and a previous event for the application is less than an event length threshold.
See Claim 4, 10 & 14 Above.
20. The method of claim 16, wherein the application is a first application, the method further comprising crediting exposure to media associated with a second application independently of crediting exposure to the identified first media as background media, the second application is operating in the foreground mode at the first identified time while the first application is operating in the background mode.
20. The method of claim 18, wherein the application is a first application, the method further comprising crediting exposure to media associated with a second application independently of crediting exposure to the identified first media as background media, the second application is operating in the foreground mode at the first identified time while the first application is operating in the background mode.
21. The method of claim 16, further comprising determining that the application has stopped operating in the background mode by determining that an event corresponds to a resource demand that supersedes a resource demand of the application.
See Claim 8 Above.
Allowable Subject Matter
7. Claim(s) 3, 8, 11, 13, 17 & 19 is/are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim Rejections - 35 USC § 102
8. 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 the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a) the invention was known or used by others in this country, or patented or described in a printed
publication in this or a foreign country, before the invention thereof by the applicant for a patent.
Claim(s) 2, 6-8, 10, 14-16, 20-21 is/are rejected under pre-AIA 35 U.S.C. 102 (a) as being anticipated by Schwartz, JR. et al. (US 2013/0061251 A1).
Re Claim 2, 10 & 16, Schwartz, JR. teaches a non-transitory computer readable medium comprising instructions which, when executed by one or more processors, cause at least:
determining that an application is operating in a background mode at a first identified time; (Schwartz, JR.; FIG. 1-4; Background, ¶ [0027]-[0058], [0100]-[0104]; An application operating in a background mode at an identifiable time.)
identifying first media output by the application at the first identified time; and (Schwartz, JR.; FIG. 1-4; Background, ¶ [0027]-[0058], [0100]-[0104]; Identifiable presentable content/media has an associated time.)
based on identifying that the application is operating in the background mode at the first identified time, (Schwartz, JR.; FIG. 1-4; Background, ¶ [0027]-[0058], [0100]-[0104]; Identifiable presentable content/media has an associated time.)
crediting exposure to the identified first media as background media at the first identified time. (Schwartz, JR.; FIG. 1-4; Background, ¶ [0027]-[0058], [0100]-[0104]; The system recognizes when the application is in the background mode for an identifiable set period of time.)
Re Claim 6 & 20, Schwartz, JR. discloses the non-transitory computer readable medium of claim 2, wherein the application is a first application, wherein the instructions further cause, when executed by the one or more processors, crediting exposure to media associated with a second application independently of crediting exposure to the identified first media as background media, the second application is operating in the foreground mode at the first identified time while the first application is operating in the background mode. (Schwartz, JR.; FIG. 1-4; ¶ [0027]-[0084], [0100]-[0110]; The embodiment(s) detail various application, operational times in various modes.)
Re Claim 7, 15 & 21, Schwartz, JR. discloses the non-transitory computer readable medium of claim 2, wherein the instructions further cause, when executed by the one or more processors, determining that the application has stopped operating in the background mode by determining that an event corresponds to a resource demand that supersedes a resource demand of the application. (Schwartz, JR.; FIG. 1-4; ¶ [0041]-[0044], [0047], [0061]-[0072]; Determining resource demand for the application, stopping background process.)
Re Claim 8, Schwartz, JR. discloses the non-transitory computer readable medium of claim 2,
wherein the instructions further cause, when executed by the one or more processors, crediting exposure to the identified first media as background media during a time duration between a request and a previous event corresponding to a start time of a second application executing in a foreground execution mode. (Schwartz, JR.; FIG. 1-4; ¶ [0027]-[0084]; The embodiment(s) detail identifying media during various time periods in a background and foreground state.)
Re Claim 14, Schwartz, JR. discloses the apparatus of claim 10, wherein the application is a first application, and wherein the instructions further cause, when executed by the at least one processor, the apparatus to credit exposure to media associated with a second application independently of crediting exposure to the identified first media as background media, the second application is operating in the foreground mode at the first identified time while the first application is operating in the background mode. (Schwartz, JR.; FIG. 1-4; ¶ [0027]-[0084], [0100]-[0110]; The embodiment(s) detail various applications, background and foreground modes at various times of operation.)
Claim Rejections - 35 USC § 103
9. The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 4, 12, 18 rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Schwartz, JR. et al. (US 2013/0061251 A1) and further in view of Luna et al. (US 2012/0158908 A1).
Re Claim 4, 12 & 18, Schwartz, JR. discloses the non-transitory computer readable medium of claim 2, yet does not explicitly suggest wherein the application is a first application, wherein the instructions further cause, when executed by the one or more processors, determining that the application is operating in the background mode by determining that a record for the first application occurs within a time period associated with a foreground execution session of a second application.
However, in analogous art, Luna teaches wherein the application is a first application, wherein the instructions further cause, when executed by the one or more processors,
determining that the application is operating in the background mode by determining that a record for the first application occurs within a time period associated with a foreground execution session of a second application. (Luna; FIG. 1, 20; ¶ [0378]-[0379], [0515]-[0520]; The detecting of temporal operation of applications operating in a foreground, background mode.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention (AIA ) to modify Schwartz, JR. in view of Luna to detect when an application switch from background to foreground mode for the reasons of optimizing connection and data transmissions. (Luna Abstract)
Conclusion
10. Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER B ROBINSON whose telephone number is (571)270-0702. The examiner can normally be reached M-F 7:00-3:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nicholas R Taylor can be reached at 571-272-3889. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER B ROBINSON/Primary Examiner, Art Unit 2443