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 . This Office action is based on the communications filed October 29, 2024. Claim 1 is currently pending and considered below.
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.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 15 of U.S. Patent No. 11,606,663 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because while obvious variations in wording are present claims 1 – 15 of U.S. Patent No. 11,606,663 B2 are narrower in scope and therefore anticipate all of the limitations required of claim 1 of the instant application.
In regards to claim 1, U.S. Patent No. 11,606,663 B2 discloses a method of controlling generation of a 3D audio stream, the method comprising: accessing an audio stream (see, “1. A method of controlling generation of a 3D audio stream, the method comprising: accessing an audio stream,” claim 1 of U.S. Patent No. 11,606,663 B2); determining a value of a feature associated with the audio stream (see, “generating a feature vector associated with the audio stream by a Deep Neural Network (DNN) which takes for input the audio stream in either time or frequency domain and which outputs the feature vector,” claim 1 of U.S. Patent No. 11,606,663 B2); selecting one or more 3D control parameters from a set of 3D control parameters, the selecting being based on the value of the feature associated with the audio stream; and generating the 3D audio stream based on the selected one or more 3D control parameters (see, “selecting one or more 3D control parameters from a set of 3D control parameters, the selecting being based on the feature vector associated with the audio stream; and generating the 3D audio stream based on the selected one or more 3D control parameters,” claim 1 of U.S. Patent No. 11,606,663 B2).
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 17 of U.S. Patent No. 12,167,227 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because while obvious variations in wording are present claims 1 – 17 of U.S. Patent No. US 11,606,663 B2 are narrower in scope and therefore anticipate all of the limitations required of claim 1 of the instant application.
In regards to claim 1, U.S. Patent No. 12,167,227 B2 discloses a method of controlling generation of a 3D audio stream, the method comprising: accessing an audio stream (see, “1. A method of generating a 3D audio stream, the method comprising: accessing an audio stream,” claim 1 of U.S. Patent No. 12,167,227 B2, “13. A method of generating a 3D audio stream, the method comprising: accessing an audio stream, claim 13 of U.S. Patent No. 12,167,227 B2); determining a value of a feature associated with the audio stream (see, “generating, by a machine learning algorithm (MLA), a feature vector associated with the audio stream, wherein the feature vector comprises a metric associated with a frequency distribution of correlations of left and right channels of the audio stream,” claim 1 of U.S. Patent No. 12,167,227 B2, “extracting a frequency distribution of correlations of left and right channels of the audio stream; comparing the frequency distribution of correlations with a plurality of stored frequency distributions of correlations,” claim 13 of U.S. Patent No. 12,167,227 B2); selecting one or more 3D control parameters from a set of 3D control parameters, the selecting being based on the value of the feature associated with the audio stream; and generating the 3D audio stream based on the selected one or more 3D control parameters (see, “selecting, based on the feature vector associated with the audio stream, one or more 3D control parameters from a set of 3D control parameters; and generating the 3D audio stream based on the one or more 3D control parameters,” claim 1 of U.S. Patent No. 12,167,227 B2, “selecting, based on the comparing, one or more 3D control parameters from a set of3D control parameters; and generating the 3D audio stream based on the one or more 3D control parameters,” claim 13 of U.S. Patent No. 12,167,227 B2).
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by McGrath et al. (US 6,741,706 B1), hereinafter McGrath.
Claim 1: McGrath discloses a method of controlling generation of a 3D audio stream (see at least, “A method of processing a series of input audio signals representing a series of virtual audio sound sources placed at predetermined positions around a listener to produce a reduced set of audio output signals for playback over speaker devices placed around a listener,” McGrath Abstract), the method comprising:
accessing an audio stream (see at least, “The custom DSP 200 takes the input data from the disc and outputs stereo signals to a digital analogue converter 201 which provides analogue outputs which are amplified 204, 205 for providing left and right speaker outputs,” McGrath Column 9 Lines 51 – 55);
determining a value of a feature associated with the audio stream (see at least, “Embodiments preferably have some method of switching the "binauraliser" effect on and off and may incorporate a method of switching between equaliser settings for different sets of headphones or controlling other variations in the processing performed, including, perhaps, output volume,” McGrath Column 9 Lines 20 – 25, “A binauralizer switch 28 can be provided for turning on and off the binauralizer effect,” McGrath Column 9 Lines 57 – 58, “The embodiment may incorporate a distance or "zoom" control which allows the listener to vary the perceived distance or environment of the sound source. In a preferred embodiment this control is implemented as a slider control,” McGrath Column 10 Lines 57 – 60);
selecting one or more 3D control parameters from a set of 3D control parameters, the selecting being based on the value of the feature associated with the audio stream (see at least, “Further modifications can include utilizing a variable control to alter the impulse response functions in a predetermined manner,” McGrath Column 3 Lines 13 – 15, “Implementation of such a control can comprise utilizing different sets of filter responses for different distances,” McGrath Column 11 Lines 2 – 4); and
generating the 3D audio stream based on the selected one or more 3D control parameters (see at least, “When this control is at its minimum the sound appears to come from very close to the ears and may, in fact, be plain unbinauralised stereo. At this control's maximum setting the sound is perceived to come from a distance. The control can be varied between these extremes to control the perceived "out-of-head" -ness of the sound. By starting the control in the minimum position and slider it towards maximum, the user will be able to adjust to the binaural experience quicker than with a simple binaural on/off switch,” McGrath Column 10 Line 57 – Column 11 Line 2).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH SAUNDERS whose telephone number is (571)270-1063. The examiner can normally be reached Monday-Thursday, 9:00 a.m. - 4 p.m., EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Carolyn R Edwards can be reached at (571)270-7136. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSEPH SAUNDERS JR/Primary Examiner, Art Unit 2692
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