DETAILED ACTION
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 .
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 1-5, 8-12, 15-16, and 18 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 and 10 of U.S. Patent No. [12/120,390, hereinafter refers '390 ].
Regarding claim 1, the claim limitation of “identifying, in return path data, tuning data corresponding to a first group of set top boxes, the first group of set top boxes classified as associated with machine events; identifying, in a first time interval of the tuning data, a pattern indicative of an occurrence of at least one machine event associated with the first group of set top boxes; and flagging a first portion of the tuning data as associated with the at least one machine event based on the pattern” corresponds to claim limitation of “identifying, in return path data, first tuning data corresponding to a first group of set-top boxes, the first group of set-top boxes classified as associated with machine events; removing second tuning data associated with the time interval from the first tuning data” of claim 1 of ‘390 and “identifying, in a first time interval of the tuning data, a pattern indicative of an occurrence of at least one machine event associated with the first group of set top boxes” of claim 5 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 1 is met by the claim limitation of claim 1 and 5 of ‘390.
Regarding claim 2, the claim limitation of “comparing first tuning events in the return path data and second tuning events in the return path data, the first tuning events attributed to the first group of the set top boxes, the second tuning events attributed to a second group of the set top boxes; and based on an output of the comparison satisfying a threshold during a second time interval of the tuning data, flagging a second portion of the tuning data as associated with the at least one machine event” corresponds to claim limitation of “making a comparison of first tuning events in the return path data and second tuning events in the return path data, the first tuning events attributed to the first group of the set-top boxes, the second tuning events attributed to a second group of the set-top boxes; and based on an output of the comparison satisfying a threshold during a time interval, removing second tuning data associated with the time interval from the first tuning data” of claim 1 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 2 is met by the claim limitation of claim 1 of ‘390.
Regarding claim 3, the claim limitation of “wherein the second group of the set top boxes are classified as not likely to exhibit machine events” corresponds to claim limitation of “wherein the second group of the set-top boxes are classified as not likely to exhibit machine events” of claim 3 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 3 is met by the claim limitation of claim 3 of ‘390.
Regarding claim 4, the claim limitation of “removing the flagged first portion of the tuning data from the tuning data; and removing the flagged second portion of the tuning data from the tuning data” corresponds to claim limitation of “removing second tuning data associated with the time interval from the first tuning data” of claim 1 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 4 is met by the claim limitation of claim 1 of ‘390.
Regarding claim 5, the claim limitation of “wherein the second time interval is different than the first time interval” corresponds to claim limitation of “wherein the time interval is longer than a duration of the at least one of the machine events” of claim 6 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 5 is met by the claim limitation of claim 6 of ‘390.
Regarding claim 8, the claim limitation of “identifying, in return path data, tuning data corresponding to a first group of set top boxes, the first group of set top boxes classified as associated with machine events; identifying, in a first time interval of the tuning data, a pattern indicative of an occurrence of at least one machine event associated with the first group of set top boxes; and flagging a first portion of the tuning data as associated with the at least one machine event based on the pattern” corresponds to claim limitation of “identifying, in return path data, first tuning data corresponding to a first group of set-top boxes, the first group of set-top boxes classified as associated with machine events; removing second tuning data associated with the time interval from the first tuning data” of claim 1 of ‘390 and “identifying the second tuning data associated with the time interval based on a portion of the first tuning data defining a pattern indicative of an occurrence of at least one of the machine events associated with the first group of set-top boxes” of claim 5 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 8 is met by the claim limitation of claim 1 and 5 of ‘390.
Regarding claim 9, the claim limitation of “comparing first tuning events in the return path data and second tuning events in the return path data, the first tuning events attributed to the first group of the set top boxes, the second tuning events attributed to a second group of the set top boxes; and based on an output of the comparison satisfying a threshold during a second time interval of the tuning data, flagging a second portion of the tuning data as associated with the at least one machine event” corresponds to claim limitation of “making a comparison of first tuning events in the return path data and second tuning events in the return path data, the first tuning events attributed to the first group of the set-top boxes, the second tuning events attributed to a second group of the set-top boxes; and based on an output of the comparison satisfying a threshold during a time interval, removing second tuning data associated with the time interval from the first tuning data” of claim 1 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 9 is met by the claim limitation of claim 1 of ‘390.
Regarding claim 10, the claim limitation of “wherein the second time interval is different than the first time interval” corresponds to claim limitation of “wherein the time interval is longer than a duration of the at least one of the machine events” of claim 6 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 10 is met by the claim limitation of claim 6 of ‘390.
Regarding claim 11, the claim limitation is same as claim limitation of claim 10.
Regarding claim 12, the claim limitation of “removing the flagged first portion of the tuning data from the tuning data; and removing the flagged second portion of the tuning data from the tuning data” corresponds to claim limitation of “removing second tuning data associated with the time interval from the first tuning data” of claim 1 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 4 is met by the claim limitation of claim 1 of ‘390.
Regarding claim 15, the claim limitation of “identifying, in return path data, tuning data corresponding to a first group of set top boxes, the first group of set top boxes classified as associated with machine events; identifying, in a first time interval of the tuning data, a pattern indicative of an occurrence of at least one machine event associated with the first group of set top boxes; and flagging a first portion of the tuning data as associated with the at least one machine event based on the pattern” corresponds to claim limitation of “identifying, in return path data, first tuning data corresponding to a first group of set-top boxes, the first group of set-top boxes classified as associated with machine events; removing second tuning data associated with the time interval from the first tuning data” of claim 1 of ‘390 and “identifying the second tuning data associated with the time interval based on a portion of the first tuning data defining a pattern indicative of an occurrence of at least one of the machine events associated with the first group of set-top boxes” of claim 5 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 8 is met by the claim limitation of claim 1 and 5 of ‘390.
Regarding claim 16, the claim limitation of “comparing first tuning events in the return path data and second tuning events in the return path data, the first tuning events attributed to the first group of the set top boxes, the second tuning events attributed to a second group of the set top boxes; and based on an output of the comparison satisfying a threshold during a second time interval of the tuning data, flagging a second portion of the tuning data as associated with the at least one machine event” corresponds to claim limitation of “making a comparison of first tuning events in the return path data and second tuning events in the return path data, the first tuning events attributed to the first group of the set-top boxes, the second tuning events attributed to a second group of the set-top boxes; and based on an output of the comparison satisfying a threshold during a time interval, removing second tuning data associated with the time interval from the first tuning data” of claim 1 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 9 is met by the claim limitation of claim 1 of ‘390.
Regarding claim 18, the claim limitation of “removing the flagged first portion of the tuning data from the tuning data; and removing the flagged second portion of the tuning data from the tuning data” corresponds to claim limitation of “removing second tuning data associated with the time interval from the first tuning data” of claim 1 of ‘390. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim limitation of claim 18 is met by the claim limitation of claim 1 of ‘390.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 6-8, 13-14, and 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hadfield et al. (US 2013/0014147 A1, hereinafter refers Hadfield).
Regarding claim 1, Hadfield discloses a computing system comprising: a processor; at least one memory, having stored thereon program instructions that, upon execution by the processor, cause performance of operations comprising:
identifying, in return path data, tuning data corresponding to a first group of set top boxes, the first group of set top boxes classified as associated with machine events (Fig. 1, abstract, to collect all tuning data from each set top box);
identifying, in a first time interval of the tuning data, a pattern indicative of an occurrence of at least one machine event associated with the first group of set top boxes (Fig. 2-3B, performing statistical adjustments to identify all the tuning event, el. 310, para. 330);
and flagging a first portion of the tuning data as associated with the at least one machine event based on the pattern (Fig. 3A-3B, para. 38-41, to remove or discard non human generated tune data)
Regarding claim 6, Hadfield discloses wherein the at least one machine event includes a tuning event that is not directly initiated by a viewer (para. 31).
Regarding claim 7, Hadfield discloses wherein the tuning event that is not directly initiated by the viewer corresponds to a software update for the first group of set top boxes (para. 32, non human tuning event due to the firmware maintenance update to the set top box).
Regarding claim 8, the instant claim is analyzed with respect claim 1.
Regarding claim 13, the instant claim is analyzed with respect claim 6.
Regarding claim 14, the instant claim is analyzed with respect claim 7.
Regarding claim 15, the instant claim is analyzed with respect claim 1.
Regarding claim 19, the instant claim is analyzed with respect claim 6.
Regarding claim 20, the instant claim is analyzed with respect claim 7.
Allowable Subject Matter
Claims 2-5, 9-12, and 15-18 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.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 1, 8, 15, and its respective dependents, the art of record either alone or in combination fails claim limitation of “comparing first tuning events in the return path data and second tuning events in the return path data, the first tuning events attributed to the first group of the set top boxes, the second tuning events attributed to a second group of the set top boxes; and based on an output of the comparison satisfying a threshold during a second time interval of the tuning data, flagging a second portion of the tuning data as associated with the at least one machine event.”
As to the art of record, Hadfield reference discloses to analyze and discard the non human tuning events. However, Hadfield does not teach with respect to the entire or combination claim limitation stated as above.
Conclusion
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/CAI Y CHEN/ Primary Examiner, Art Unit 2425
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