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 .
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.
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 30-49 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 4-5, 10-11, 16-17, 23, 25, 28 of U.S. Patent No. 11,687,315 (hereinafter referred to as Patent ‘315). Although the claims at issue are not identical, they are not patentably distinct from each other because claims in the continuation are broader than the ones in patent. In re Van Ornum and Stang, 214 USPQ T61, broad claims in continuation application are rejected as obvious double patenting over previously patented narrow claims. For example, claim 30 of the present invention is functionally similar to claim 11 of Patent ‘315 except that claim 30 of the present invention does not recite “audio blending” in preamble as recited in claim 11 of Patent ‘315. Further claim 30 of the present invention does not recite “providing a computing device comprising at least one processor; providing a non-transitory computer readable medium, having stored thereon, instructions that when executed by the computing device, cause the computing device to perform operations comprising:” and “determining fade out content of the at least one audio file based on an amplitude, wherein operations identifying a type of fade as smooth or rhythmic are based at least in part on at least one of duration and amplitude” as recited in claim 11 of Patent ‘315. However, the operations performed by claim 11 of Patent ‘315 perform the method as recited in claim 30 of the present invention. For example, claim 30 of present invention recites “receiving a transition request, the transition request including at least one of an out element and an in element of at least one transition adjacent at least one content item of at least one recipe, the at least one recipe comprising a sequence of a plurality of elements of content of a break, and the at least one content item including at least one of audio content and video content” functionally similar to “receiving a transition request, the transition request comprising at least one of an out element and at least one of an in element of at least one transition associated with at least one content item of at least one recipe, the at least one recipe comprising a sequence of a plurality of elements of content of a break and the at least one content item, the at least one content item comprising at least one of audio content and video content” as recited in claim 11 of Patent ‘315; claim 30 of present invention recites “coupling to at least one metadata file of at least one audio file using a wired or wireless link, the metadata file comprising audio content parameters measured or calculated from the at least one audio file” functionally similar to “causing a track server to couple to at least one metadata file of at least one audio file using a wired or wireless link, the metadata file comprising audio content parameters measured or calculated from the at least one audio file” as recited in claim 11 of Patent ‘315; claim 30 of present invention recites “calculating a transition between the out element and the in element” functionally similar to “calculating a transition between the at least one out element and the at least one in element” as recited in claim 11 of Patent ‘315; claim 30 of present invention recites “scheduling the sequence of plurality of elements for the transition in accordance with the at least one metadata file” functionally similar to “selecting, assembling and scheduling the sequence of plurality of elements for the transition” as recited in claim 11 of Patent ‘315; claim 30 of present invention recites “determining an existence of a hidden track of the at least one audio file, and removing when found” functionally similar to “further comprising determining an existence of a hidden track of the at least one audio file and removing if found” as recited in claim 11 of Patent ‘315; and claim 30 of present invention recites “adding the out element to the at least one recipe” functionally similar to “adding the out element and fade out content to the at least one recipe” as recited in claim 11 of Patent ‘315.
Claim 31, rejected against claim 11 of Patent ‘315.
Claim 32, rejected against combined functionalities of claim 11 and clam 4 of Patent ‘315.
Claim 33, rejected against combined functionalities of claim 11 and clam 5 of Patent ‘315.
Claim 34, rejected against combined functionalities of claim 11 and clam 10 of Patent ‘315.
Claim 35, rejected against combined functionalities of claim 11 and clam 17 of Patent ‘315.
Claim 36, rejected against combined functionalities of claim 11 and clam 16 of Patent ‘315.
Claim 37, rejected against combined functionalities of claim 11 and clam 23 of Patent ‘315.
Claim 38, rejected against combined functionalities of claim 11 and clam 25 of Patent ‘315.
Claim 39, rejected against combined functionalities of claim 11 and clam 28 of Patent ‘315.
Claim 40, of the present invention is functionally similar to claim 11 of Patent ‘315 except that claim 40 of the present invention does not recite “audio blending method” in preamble as recited in claim 11 of Patent ‘315. Further claim 40 of the present invention does not recite “providing a computing device comprising at least one processor”, and “determining fade out content of the at least one audio file based on an amplitude, wherein operations identifying a type of fade as smooth or rhythmic are based at least in part on at least one of duration and amplitude” as recited in claim 11 of Patent ‘315. Claim 40 of the present invention recites “A non-transitory computer-readable storage medium tangibly encoded with computer-executable instructions, that when executed by a processor, perform a method comprising:” functionally similar to “providing a non-transitory computer readable medium, having stored thereon, instructions that when executed by the computing device, cause the computing device to perform operations comprising:” as recited in claim 11 of Patent ‘315. However, the operations performed by claim 11 of Patent ‘315 perform the method as recited in claim 40 of the present invention. For example, claim 40 of present invention recites “receiving a transition request, the transition request including at least one of an out element and an in element of at least one transition adjacent at least one content item of at least one recipe, the at least one recipe comprising a sequence of a plurality of elements of content of a break, and the at least one content item including at least one of audio content and video content” functionally similar to “receiving a transition request, the transition request comprising at least one of an out element and at least one of an in element of at least one transition associated with at least one content item of at least one recipe, the at least one recipe comprising a sequence of a plurality of elements of content of a break and the at least one content item, the at least one content item comprising at least one of audio content and video content” as recited in claim 11 of Patent ‘315; claim 40 of present invention recites “coupling to at least one metadata file of at least one audio file using a wired or wireless link, the metadata file comprising audio content parameters measured or calculated from the at least one audio file” functionally similar to “causing a track server to couple to at least one metadata file of at least one audio file using a wired or wireless link, the metadata file comprising audio content parameters measured or calculated from the at least one audio file” as recited in claim 11 of Patent ‘315; claim 40 of present invention recites “calculating a transition between the out element and the in element” functionally similar to “calculating a transition between the at least one out element and the at least one in element” as recited in claim 11 of Patent ‘315; claim 40 of present invention recites “scheduling the sequence of plurality of elements for the transition in accordance with the at least one metadata file” functionally similar to “selecting, assembling and scheduling the sequence of plurality of elements for the transition” as recited in claim 11 of Patent ‘315; claim 40 of present invention recites “determining an existence of a hidden track of the at least one audio file, and removing when found” functionally similar to “further comprising determining an existence of a hidden track of the at least one audio file and removing if found” as recited in claim 11 of Patent ‘315; and claim 40 of present invention recites “adding the out element to the at least one recipe” functionally similar to “adding the out element and fade out content to the at least one recipe” as recited in claim 11 of Patent ‘315.
Claim 41, rejected against claim 11 of Patent ‘315.
Claim 42, rejected against combined functionalities of claim 11 and clam 4 of Patent ‘315.
Claim 43, rejected against combined functionalities of claim 11 and clam 5 of Patent ‘315.
Claim 44, rejected against combined functionalities of claim 11 and clam 10 of Patent ‘315.
Claim 45, rejected against combined functionalities of claim 11 and clam 17 of Patent ‘315.
Claim 46, rejected against combined functionalities of claim 11 and clam 16 of Patent ‘315.
Claim 47, rejected against combined functionalities of claim 11 and clam 23 of Patent ‘315.
Claim 48, rejected against combined functionalities of claim 11 and clam 25 of Patent ‘315.
Claim 49, rejected against combined functionalities of claim 11 and clam 28 of Patent ‘315.
Claims 30-49 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-5, 9, 11, 16-17, 23, 25, 28 of U.S. Patent No. 12,135,916 (hereinafter referred to as Patent ‘916). Although the claims at issue are not identical, they are not patentably distinct from each other because claims in the continuation are broader than the ones in patent. In re Van Ornum and Stang, 214 USPQ T61, broad claims in continuation application are rejected as obvious double patenting over previously patented narrow claims. For example, claim 30 of the present invention is functionally similar to claim 1 of Patent ‘916 except that claim 30 of the present invention does not recite “audio blending system” in preamble as recited in claim 1 of Patent ‘916. Further claim 30 of the present invention does not recite “a computing device comprising at least one processor; a non-transitory computer readable medium, having stored thereon, instructions that when executed by the computing device, cause the computing device to perform operations comprising:” as recited in claim 1 of Patent ‘916. However, the operations performed by claim 1 of Patent ‘916 perform the method as recited in claim 30 of the present invention. For example, claim 30 of present invention recites “receiving a transition request, the transition request including at least one of an out element and an in element of at least one transition adjacent at least one content item of at least one recipe, the at least one recipe comprising a sequence of a plurality of elements of content of a break, and the at least one content item including at least one of audio content and video content” functionally similar to “ receiving a transition request, the transition request including at least one of an out element and an in element of at least one transition adjacent at least one content item of at least one recipe, the at least one recipe comprising a sequence of a plurality of elements of content of a break, and the at least one content item including at least one of audio content and video content” as recited in claim 1 of Patent ‘916; claim 30 of present invention recites “coupling to at least one metadata file of at least one audio file using a wired or wireless link, the metadata file comprising audio content parameters measured or calculated from the at least one audio file” functionally similar to “coupling to at least one metadata file of at least one audio file using a wired or wireless link, the metadata file comprising audio content parameters measured or calculated from the at least one audio file; calculating a transition between the out element and the in element” as recited in claim 1 of Patent ‘916; claim 30 of present invention recites “calculating a transition between the out element and the in element” functionally similar to “calculating a transition between the at least one out element and the at least one in element” as recited in claim 1 of Patent ‘916; claim 30 of present invention recites “scheduling the sequence of plurality of elements for the transition in accordance with the at least one metadata file” functionally similar to “scheduling the sequence of plurality of elements for the transition in accordance with the at least one metadata file” as recited in claim 1 of Patent ‘916; claim 30 of present invention recites “determining an existence of a hidden track of the at least one audio file, and removing when found” functionally similar to “wherein the non-transitory computer readable medium includes instructions that when executed by the computing device, cause the computing device to perform operations comprising: determining the existence of a hidden track of the at least one audio file and removing if found” as recited in claim 1 of Patent ‘916; and claim 30 of present invention recites “adding the out element to the at least one recipe” functionally similar to “adding the out element to the at least one recipe” as recited in claim 1 of Patent ‘916.
Claim 31, rejected against claim 11 of Patent ‘916.
Claim 32, rejected against clam 4 of Patent ‘916.
Claim 33, rejected against clam 5 of Patent ‘916.
Claim 34, rejected against clam 9 of Patent ‘916.
Claim 35, rejected against clam 17 of Patent ‘916.
Claim 36, rejected against clam 16 of Patent ‘916.
Claim 37, rejected against clam 23 of Patent ‘916.
Claim 38, rejected against clam 25 of Patent ‘916.
Claim 39, rejected against clam 28 of Patent ‘916.
Claim 40, of the present invention is functionally similar to claim 1 of Patent ‘916 except that claim 40 of the present invention does not recite “a computing device comprising at least one processor” as recited in claim 1 of Patent ‘916. Claim 40 of the present invention recites “A non-transitory computer-readable storage medium tangibly encoded with computer-executable instructions, that when executed by a processor, perform a method comprising:” functionally similar to “a non-transitory computer readable medium, having stored thereon, instructions that when executed by the computing device, cause the computing device to perform operations comprising:” as recited in claim 1 of Patent ‘916. However, the operations performed by claim 1 of Patent ‘916 perform the method as recited in claim 40 of the present invention. For example, claim 40 of present invention recites “receiving a transition request, the transition request including at least one of an out element and an in element of at least one transition adjacent at least one content item of at least one recipe, the at least one recipe comprising a sequence of a plurality of elements of content of a break, and the at least one content item including at least one of audio content and video content” functionally similar to “receiving a transition request, the transition request including at least one of an out element and an in element of at least one transition adjacent at least one content item of at least one recipe, the at least one recipe comprising a sequence of a plurality of elements of content of a break, and the at least one content item including at least one of audio content and video content” as recited in claim 1 of Patent ‘916; claim 40 of present invention recites “coupling to at least one metadata file of at least one audio file using a wired or wireless link, the metadata file comprising audio content parameters measured or calculated from the at least one audio file” functionally similar to “coupling to at least one metadata file of at least one audio file using a wired or wireless link, the metadata file comprising audio content parameters measured or calculated from the at least one audio file” as recited in claim 1 of Patent ‘916; claim 40 of present invention recites “calculating a transition between the out element and the in element” functionally similar to “calculating a transition between the out element and the in element” as recited in claim 1 of Patent ‘916; claim 40 of present invention recites “scheduling the sequence of plurality of elements for the transition in accordance with the at least one metadata file” functionally similar to “scheduling the sequence of plurality of elements for the transition in accordance with the at least one metadata file” as recited in claim 1 of Patent ‘916; claim 40 of present invention recites “determining an existence of a hidden track of the at least one audio file, and removing when found” functionally similar to “wherein the non-transitory computer readable medium includes instructions that when executed by the computing device, cause the computing device to perform operations comprising: determining the existence of a hidden track of the at least one audio file and removing if found” as recited in claim 1 of Patent ‘916; and claim 40 of present invention recites “adding the out element to the at least one recipe” functionally similar to “adding the out element to the at least one recipe” as recited in claim 1 of Patent ‘916.
Claim 41, rejected against claim 11 of Patent ‘916.
Claim 42, rejected against clam 4 of Patent ‘916.
Claim 43, rejected against clam 5 of Patent ‘916.
Claim 44, rejected against clam 9 of Patent ‘916.
Claim 45, rejected against clam 17 of Patent ‘916.
Claim 46, rejected against clam 16 of Patent ‘916.
Claim 47, rejected against clam 23 of Patent ‘916.
Claim 48, rejected against clam 25 of Patent ‘916.
Claim 49, rejected against clam 28 of Patent ‘916.
Allowable Subject Matter
Claims 30-49 are objected as they are rejected under Double Patenting.
Claims are allowable over prior art for following reasons.
Regarding claim 30, Shanson (US Patent Application Publication No. 2016/0080470) teaches a method comprising:
receiving a transition request, the transition request including at least one of an out element and an in element (Paragraphs 0027-0028, 0035, 0041, 0043-0044 request with offset at a particular break element) of at least one transition adjacent at least one content item (segment) of at least one recipe (playlist), the at least one recipe (playlist) comprising a sequence of a plurality of elements of content of a break (Figs. 6-7, 9 multiple breaks), and the at least one content item including at least one of audio content and video content (Abstract, Paragraph 0024) (Paragraphs 0026-0062);
coupling to at least one metadata file of at least one media file using a wired or wireless link, the metadata file comprising media content parameters measured or calculated from the at least one media file (Paragraphs 0036-0040, 0044-0062 metadata files);
calculating a transition between the out element and the in element (Paragraphs 0041, 0043);
scheduling the sequence of plurality of elements for the transition in accordance with the at least one metadata file; and adding the out element to the at least one recipe (Paragraphs 0038-0039, 0044-0050 creating playlist with dynamic insertion of advertisements for breaks) (Paragraphs 0005-0009, 0024-0128 for complete details).
Shanson teaches video as media but does not specifically teach audio as media, and determining an existence of a hidden track of the at least one audio file, and removing when found.
However, in the similar field, Schiller (US Patent Application Publication No. 2012/0030704) coupling to at least one metadata file of at least one media file using a wired or wireless link (Paragraph 0042 content metadata, Abstract, Paragraph 0035 video or audio content), the metadata file comprising media content parameters measured or calculated from the at least one media file (Paragraph 0033); calculating a transition between the out element and the in element (Paragraphs 0033-0043 ad break in and out conditions); scheduling the sequence of plurality of elements for the transition in accordance with the at least one metadata file; and adding the out element to the at least one recipe (Paragraphs 0044-0047, 0058-0063).
Therse and other prior art of record alone or in combination fail to teach the invention as claimed in detail when claim is considered as a whole including limitation of “determining an existence of a hidden track of the at least one audio file, and removing when found”.
Regarding claims 31-39, they depend from allowable claim 30.
Regarding claim 40, Shanson (US Patent Application Publication No. 2016/0080470) teaches a non-transitory computer-readable storage medium tangibly encoded with computer-executable instructions, that when executed by a processor (Paragraphs 0063-0069), perform a method comprising:
receiving a transition request, the transition request including at least one of an out element and an in element (Paragraphs 0027-0028, 0035, 0041, 0043-0044 request with offset at a particular break element) of at least one transition adjacent at least one content item (segment) of at least one recipe (playlist), the at least one recipe (playlist) comprising a sequence of a plurality of elements of content of a break (Figs. 6-7, 9 multiple breaks), and the at least one content item including at least one of audio content and video content (Abstract, Paragraph 0024) (Paragraphs 0026-0062);
coupling to at least one metadata file of at least one media file using a wired or wireless link, the metadata file comprising media content parameters measured or calculated from the at least one media file (Paragraphs 0036-0040, 0044-0062 metadata files);
calculating a transition between the out element and the in element (Paragraphs 0041, 0043);
scheduling the sequence of plurality of elements for the transition in accordance with the at least one metadata file; and adding the out element to the at least one recipe (Paragraphs 0038-0039, 0044-0050 creating playlist with dynamic insertion of advertisements for breaks) (Paragraphs 0005-0009, 0024-0128 for complete details).
Shanson teaches video as media but does not specifically teach audio as media, and determining an existence of a hidden track of the at least one audio file, and removing when found.
However, in the similar field, Schiller (US Patent Application Publication No. 2012/0030704) coupling to at least one metadata file of at least one media file using a wired or wireless link (Paragraph 0042 content metadata, Abstract, Paragraph 0035 video or audio content), the metadata file comprising media content parameters measured or calculated from the at least one media file (Paragraph 0033); calculating a transition between the out element and the in element (Paragraphs 0033-0043 ad break in and out conditions); scheduling the sequence of plurality of elements for the transition in accordance with the at least one metadata file; and adding the out element to the at least one recipe (Paragraphs 0044-0047, 0058-0063).
Therse and other prior art of record alone or in combination fail to teach the invention as claimed in detail when claim is considered as a whole including limitation of “determining an existence of a hidden track of the at least one audio file, and removing when found”.
Regarding claims 41-49, they depend from allowable claim 40.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Brenner (US Patent Application Publication No. 2015/0074526) teaches methods and systems for inserting information into playing content. It identifies a break in content playing via a playback device, selects an information segment representative of information received by the playback device to present during the identified break, and inserts the information segment into the content playing via the playback device upon an occurrence of the identified break.
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HEMANT PATEL
Primary Examiner
Art Unit 2694
/HEMANT S PATEL/ Primary Examiner, Art Unit 2694
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