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 .
Examiner’s Initiated Interview and Proposed amendment
For compact prosecution, on 02/09/2026, Examiner contacted Applicant’s representative, Gregory Huffman to file Internet Communication Authorization (form SB439) so the Examiner can send Examiner proposed amendment. Applicant filed Internet Communication Authorization on 02/17/2026. Examiner sent the proposed amendment to attorney Huffman on 02/24/2026. On 02/24/2026, Applicant’s representative, attorney Andrew Quecan contacted Examiner and left a voice message requesting to issue a non-final office action instead of discussing the proposed amendment because the Applicant representative would like “to understand the analysis with respect to MPEP 2106 and the changes that were made by the deputy commissioner Kim on December 5th and how that impacts the analysis…”. On February 25, 2026, Examiner contacted Applicant’s representative Andrew Quecan again and asked the Applicant’s representative to discuss the proposed amendment with the Applicant. However, Attorney Quecan preferred an office action to be issued because the Applicant’s representative would like to understand how the changes made by the deputy commissioner Kim impact the eligibility analysis.
Examiner’s note
It is noted that non-functional descriptive material does not patentably distinguish over prior art that otherwise renders the claims unpatentable. See for example, MPEP 2111.05, MPEP 2112.01(III). See also In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004); Exparte Nehls, 88 USPQ2d 1883, 1887-90 (BPAI 2008) (precedential) (discussing cases pertaining to non-functional descriptive material) see also BPAI’s decision in Appeal 2009-010851 (for Ser. No. 10/622,876) or BPAI’s decision in Appeal 2011-011929 (for Ser. No. 11/709,170), pages 6-7. In this case, a particular type of information such as “initial rating…”, “subscriber calibration factor…”, “nonsubscriber calibration factor…” are considered as non-functional descriptive material and are not required to give patentable weight because these particular types of data do not functionally change the structure or operation of a system in prior art for calculating rating and modifying rating based on information from difference types of data/sources such as the teaching in Doe reference (U.S 2012/0254911) or the teaching in U.S 2007/0136753 and its incorporated by references as shown in paragraph 0035, or the teaching in U.S 7,937,725 B1 (e.g., figures 8-10) or the well-known concept that is used to rate/evaluate/make decision based on input from different types of users (subscriber(registered)/non-subscriber(unregistered)) such as court decision that are made by judge(registered user/subscriber) and randomly selected juror(s)/member of jury. The limitations “initial rating…”, “subscriber calibration factor…”, “nonsubscriber calibration factor…” are only given patentable weight of different types of data collected from different sources.
Although non-functional descriptive material are not required to be considered, all claim limitations including non-functional descriptive material are known by prior art as discussed below.
It is also noted that the concept recited in the claims is similar to concept for voting process, where the system receives votes via electronic machines (e.g., correspond to claim term “subscribers”) and calculates rating based on number of electronic votes; the system also receives votes via papers/mails (correspond to claim term “non-subscribers”) and calculates the rating based on this type of votes. Then the system combines these types of ratings based on votes via electronic machines and votes via mails/papers to determine final rating for a candidate/subject.
See also the concept rating content and modifying the content rating/listing based on rating/selection of registered/professional users and selection/rating of un-registered/amateur users (see for example, figures 11-13, 17, paragraphs 0007, 0008, 0080-0081, 0112-0113, 0123).
It is further noted that the changes made by Deputy Commissioner For Patents, Charles Kim, dated December 5, 2025 in the Memorandum and also to MPEP 2106.04(d) subsection III, 2106.04(d)(1), 2106.05(a), subsection I, and 2106.05(f) to incorporate the Appeals Review Panel (ARP) decision in Ex Parte Desjardins, Appeal No. 2024-000567, issued on September 26, 2026, and designated precedential on November 4, 2025. In particular, the Memorandum states “these updates are not intended to announce any new USPTO practice or procedure and are mean to be consistent with existing USPTO guidance. Indeed, the Ex Parte Desiardins decision analyzed eligibility in terms of whether the claims were directed to an improvement in the functioning of a computer, or an improvement to other technology or technical field under longstanding Federal Circuitry precedent in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) and McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016). See also MPEP §§ 2106.04(d)(l) and 2106.05(a).”
CLAIM INTERPRETATION
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims 15-20 in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Because these claim limitations (e.g., means for calculating rating to:, means for calculating calibration factor to determine….) are being interpreted under 35 U.S.C. 112(f) , they are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 non-statutory subject matter.
Claim interpretation: Under the broadest reasonable interpretation, the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See Manual of Patent Examining Procedure (MPEP) 2111.
The claims recite
“determine an initial rating for the media provided in a first geographical area based on returned path data (RPD) tuning information….”
“determine a first panelist rating for the media….”
determine a nonsubscriber calibration factor based on the first panelist rating;
determine a final rating for the media….
The terms such as “initial rating”, “first panelist rating”, “a nonsubscriber calibration factor”, “final rating” are recognized as having their plain meaning of any data that is measured rating/input/factor for media. The claimed determining in each limitation encompass mental choices or evaluations or mathematical calculations.
Regarding claims 1-20 are directed to a statutory category (i.e., machine, process, manufacture) (Step 1: YES).
Step 2A, Prong One: This part of the eligibility analysis evaluates whether the claim recites a judicial exception. As explained in MPEP 2106.04, subsection II, a claim “recites” a judicial exception when the judicial exception is “set forth” or “described” in the claim.
As discussed above, the broadest reasonable interpretation of limitations such as “determine…., determine….” is that those limitations fall within the mental process groupings of abstract ideas because they cover concepts performed in the human mind, including observation, evaluation, judgment, determination, and opinion. See MPEP 2106.04(a)(2), subsection III.
In addition, the broadest reasonable interpretation of the limitations of “determining….” also encompasses mathematical concepts or mathematical calculations that can be performed mentally or piece of paper pencil. See MPEP 2106.04(a)(2), subsection I.
According, limitations recited in the claims such as “determine an initial rating for the media provided in a first geographical area based on returned path data (RPD) tuning information….; determine a first panelist rating for the media…., determine a nonsubscriber calibration factor based on the first panelist rating; determine a final rating for the media….” fall within the mental process grouping of abstract ideas and/or the mathematical concepts grouping of abstract ideas. The limitations recited in the claims are considered as a single abstract for further analysis (step 2A, Prong One: Yes).
Step 2A, Prong Two: whether the claim as a whole integrate the recited judicial exception into a practical application of the exception or whether the claim is “directed to” the judicial exception. This evaluation is performed by: identifying whether there are any additional elements recited in the claim beyond the judicial exception, evaluating whether the additional elements integrate the judicial exception into a practical application, evaluating improvements in the functioning of a computer, or an improvement of any other technology or technical field.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional limitations of an apparatus comprising a memory, machine readable instruction, programmable circuitry performing the steps of determining different types of calibration factors to determine a final rating do not preclude the claim from reciting a mental process and/or mathematical calculation. Courts frequently do not distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer. As the Federal Circuit has explained, “[c]ourts have examined claims that required the use of a computer and still found that the underlying, patent- ineligible invention could be performed via pen and paper or in a person’s mind.” Versata Dey. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015); see also Intellectual Ventures I LLC y. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (“[W]ith the exception of generic computer- implemented steps, there is nothing in the claims themselves that foreclose them from being performed by a human, mentally or with pen and paper.”); MPEP § 2106.04(a)(2)(III).
Thus, the claims recite an abstract concept of a mental process and/or mathematical calculation. There are no additional elements recited in the claims beyond the judicial exception.
the claims are analyzed to determine whether there are any additional limitations recited that amount to significantly more than the abstract idea. The claims require the steps of “determine a subscriber calibration factor”, “determine a nonsubscriber calibration factor”, “determine a final rating”, by “non-transitory computer readable medium, programable. The “memory”, “programmable circuitry”…are generic computer components that performs basic functions “to calculate” or determining ratings based on data collected from different sources/panelist that are routine activities, well-understood and conventional in the art (for example, the concept of determining final/result of an election based on votes via electronic machine or votes via mail or the concept of a final decision is made based on input from subscriber(s) such as judges and non-subscribers such as jurors of a court trial). The recitation of the computer/electronic limitations (e.g., non-transitory computer readable medium that stores instructions, programable circuitry to determine an initial rating…, to calculate a nonsubscriber…) amounts to mere instructions to implement the abstract idea on a computer/electronic device. (See also discussion regarding non-functional descriptive material above). Next, the claims are analyzed to determine whether there are any additional limitations recited that amount to significantly more than the abstract idea.
As such, there are no additional limitations that integrate the judicial exception into a practical application. More particularly, the claims do not recite (1) an improvement to the functionality of a computer or other technology or any other technology or technical field.
Rather, claims 1-20 recite an abstract idea (mental process) and/or mathematical calculation and none of the additional elements integrate the abstract idea into a practical application. These additional limitations do not integrate the recited judicial exception into a practical application (step 2A, Prong Two: NO), and the claim is directed to the judicial exception (step 2A, Yes).
Step 2B: whether the claim as a whole amounts to significantly more than the recited exception i.e., whether any additional element, or combination to significantly of additional elements, adds an inventive concept to the claim. See MPEP 2106.05
Significantly More than Abstract Idea?
If a claim: (1) recites a judicial exception, and (2) does not integrate that exception into a practical application, Then, determine whether the claim adds a specific limitation beyond the judicial exception that is not “well- understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or, simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. As discussed above independent claims 1-20 recite the additional elements of “programmable circuitry”, “memory” which receives data and performs the various determining steps discussed above. The memory which stores instructions, the programmable circuitry executes instructions and perform determination are considered to well-understood, routine, conventional activities. See MPEP § 2106.05(d)G), (1). Thus, The claims do not recite significantly more than abstract idea.
Even when considered in combination, the additional elements represent mere instructions or generic computer component to implement an abstract idea or other exception on a computer and insignificant extra-solution activity, which do not provide an inventive concept (Step 2B: NO).
In summary, The claims recite an abstract mental process and/or mathematical calculation. Further, the claims do not integrate the abstract concept into a practical application, because the claims are not: directed to an improvement in the functioning of the computer or to other technology or other technical field; directed to a particular machine; directed to performing or affecting a transformation of an article to a different state or thing; directed to using a judicial exception in some meaningful way beyond linking the exception to a particular technological environment such that the claim as a whole is more than a drafting effort to monopolize the judicial exception. Further, the additional limitations of the claims simply append well-understood and conventional activities such that the claim as a whole does not amount to significantly more than the abstract idea itself.
Accordingly, claims 1-20 are rejected under 35 U.S.C. 101 as being directed to patent-ineligible subject matter.
Claim Rejections - 35 USC § 103
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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Doe (U.S 2012/0254911 A1) in view of Mushkatblat (US 20120311635).
Note: all documents that are directly or indirectly incorporated by reference in Mushkatblat (see paragraphs 0025, 0027, 0031, 0033, 0036, 0059, 0065), including Ser. No. 10/927,814 (corresponding to US 20050028208 -referred to as E208), Ser No. 11/317,911 (20070157281), Ser. No. 11/324,202 (corresponding to US 20100153885 – referred to as Yates) in its entirety are treated as part of the specification of Mushkatblat (see for example, MPEP 2163.07 b).
Regarding claim 1, Doe discloses an apparatus (figure 9) for calculating ratings for media, the apparatus comprising:
a processor (e.g., processor 912 or circuitry – figures 1,5, 9, paragraphs 0036-0037, 0051-0057);
memory including instructions that, when executed, cause the processor to: (memory 918, 920, 914 and/or 932 including instructions that, when executed, cause processor 912/circuitry to: – see figure 9, paragraphs 0036-0042, 0057-0058):
determine an initial rating for the media provided in a first geographic area based on return path data (RPD) tuning information obtained from RPD devices in subscriber households in the first geographic area, wherein the subscriber households subscribe to a content provider that provides the media through the RPD devices (determine an initial rating for media provided in a first geographic area such as particular local market based on return path (RPD) tuning data obtained from local set top box (STB) return path tuning data in subscriber households in the particular local market, the subscriber households subscribe to a content provider of a particular digital service that provides the media/digital service through the STB return path data – see include, but are not limited to, figures 1, 3, 6, paragraphs 0014, 0017, 0021, 0024-26, 0033, abstract).;
determine a first panelist rating for the media provided in a second geographic area based on first panel tuning information obtained from first metering devices in a first subset of panelist households in the second geographic area (determine a first panel rating for media provided in a second geographic area such as national and/or other market area based on first panel tuning information obtaining from first people meters in a selected panel of households containing the meters that provide the national audience measurement data, wherein the first subset of panelist household are selected panel – see include, but are not limited to, figures 1-3, 6, paragraphs 0014, 0016-0017, 0022, 0033);
determine a calibration factor based on the first panelist rating (determine a scaling factor based on the first panelist rating of selected panel of household – see include, but are not limited to, figures 1, 4, 6, 7b, 8b, paragraphs 0021-0026); and
determine a final rating for the media in the first geographic area by modifying then initial rating based on the calibration factor (determining a final rating associated with local market audience metrics 105 for the media in the particular local market by modifying the initial rating based on the scaling factor – see include, but are not limited to, figures 1, 4, 6, 7b, 8b, paragraphs 0012, 0021-0026, 0033).
Doe discloses with respect to incompleteness, return path data may, for example, exclude sections of the population (e.g., such as excluding non-subscribers to a particular digital service provided the return path data). Doe also discloses examples of leverage the strengths of return path data and sample-based research (e.g., unbiases and complete) to obtain unbiased, detail and continuous estimate of local market audiences using statistical combination of national sample-based audience measurement data, local return path data, and local population and/or demographic data (paragraphs 0014-0015). Thus, it is obvious to one of ordinary in the art that Doe discloses first subset of panel households do not subscribe to the content provider (i.e., non-subscribers),determine a nonsubscriber calibration factor based on the first panelist rating (factor for non-subscriber based on panelist rating), and determine final rating based on nonsubscriber calibration factor (for example, obtained in national sample-based audience measurement data and/or demographic data, factor of non-subscriber that was excluded with respect to incomplete and/or biased of return path data/feedback) in order to obtain unbiased and complete, detail and continuous estimate of local market audience as described in for example, paragraphs 0014-0015.
Additionally and/or alternatively, Mushkatblat discloses processor to:
determine a first panelist rating for a media provided in a second geographic area based on first panel tuning information obtained from first devices in a first subset of panelist households in the second geographic area (determine selection/rating for media provided in a second geographic area (e.g., New York, California, etc.) based on tuning information obtaining from first devices in a first subset of households in second geographic area – see include, but are not limited to, Mushkatblat: figures 5-9 paragraphs 0005, 0038, 0042, 0070, 0085), wherein the first subset of panelist households do not subscribe to the content provider (e.g., households including Samantha in New York do not subscribe to content provider such as Comcast in Utah, or service provider in California or provider which provide media that is not available in the first subset of households - – see include, but are not limited to, Mushkatblat: figures 5-9 paragraphs 0005, 0038, 0042, 0070, 0085);
determine a nonsubscriber calibration factor based on the first panelist rating (determine a factor/value based on the first rating/selection– see include, but are not limited to, see include, but are not limited to, Mushkatblat: figures 5-9 paragraphs 0005, 0038, 0042, 0070, 0085); and
determine a final rating for the media in the first geographic area by modifying then initial rating based on the nonsubscriber calibration factor (determining the final rating/selection for the media in the first geographic area of the first user by modifying/combining then initial rating/selection of first user based on the selection factor/number of users in other area that do not subscribe to the local service provider of first area – see include, but are not limited to, Mushkatblat: figures 5-9 paragraphs 0005, 0038, 0042, 0070, 0085).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Doe with the teaching of determining nonsubscriber factor based on data obtained from devices in a first subset of panelist households in second area that do not subscribe to content provider and modifying initial rating based on nonsubscriber calibration factor as taught by Mushkatblat in order to yield predictable result of allowing users in different geographic area to share program information of programs (see paragraphs 0038, 0042).
Regarding claim 2, Doe in view of Mushkatblat discloses the apparatus of claim 1, wherein the instructions further cause the processor to:
determine a second panelist rating for the media provided in the second geographic area based on second panel tuning information obtained from second metering devices in a second subset of panelist households in the second geographic area (determine a second selected panel rating/selection for the media provided to second geographic area that including local market based on tuning information obtained from meters associated with second devices in subset of households of such as set top box in the local return path data – see include, but are not limited to, Doe: figures 1-7B, paragraphs 0012-0014, 0016, 0025, 0027), the first and second panel tuning information associated with the media delivered to the corresponding first and second subsets of the panelist households via media devices for which RPD tuning information is not available (subset of devices in households not associated with the set-top box, or other devices – see include, but are not limited to, paragraphs 0014, 0016-0017, 0021; Mushkatblat: figures 5-9), wherein the second subset of the panelist households subscribe to the content provider (see include, but are not limited to, paragraph 0021; Mushkatblat: figures 5-9, paragraphs 0038, 0042);
determine a subscriber calibration factor based on the second panelist rating (see include, but are not limited to, figures 1-8, paragraphs 0014, 0021, 0024); and determine the final rating for the media in the first geographic area by modifying the initial rating based on the subscriber calibration factor (determining the initial rating for media in the first geographical area such as local area by modifying the initial rating based on subscriber scaling factor – see include, but are not limited to, figures 1-8, paragraphs 0014, 0021, 0024, 0027; Mushkatblat: figures 5-9, paragraphs 0038, 0042).
Regarding claim 3, Doe in view of Mushkatblat discloses the apparatus as defined in claim 1, wherein the instructions further cause the processor to assign weights to the panelist households in the second geographic area to be demographically representative of a population of the first geographic area (see include, but are not limited to, Doe: figures 1, 3, 4, 6, paragraphs 0012-0013).
Regarding claim 4, Doe in view of Mushkatblat discloses the apparatus as defined in claim 1, wherein the second geographic area corresponds to a region that is larger than the first geographic area and contains the first geographic area (second geographic area such as national comprising a local area that is larger than local designated market area – see include, but are not limited to, Doe; figures 1-6, abstract, claims 1-5; Mushkatblat: paragraphs 0038, 0042, 0070).
Regarding claim 5, Doe in view of Mushkatblat discloses the apparatus as defined in claim 4, wherein the instructions further cause the processor to: determine a regional RPD-based rating for the media provided in the second geographic area based on RPD tuning information obtained from RPD devices associated with subscriber households in the second geographic area (determine region/local RPD based rating for media provided in the national area which encompasses local area based on RPD tuning data obtained from the RPD devices such as set top boxes associated with subscriber household in the national area – see include, but are not limited to, Doe: figures 1-6, paragraphs 0014, 0021, 0027; Mushkatblat: figures 5-8, paragraphs 0038, 0042); and
determine the nonsubscriber calibration factor based on the regional RPD-based rating (determine the non-subscriber scaling factor based on the local RPD based rating –see include, but are not limited to, Doe: figures 1-6, paragraphs 0014, 0021, 0027; Mushkatblat: figures 5-8, paragraphs 0038, 0042).
Regarding claim 6, Doe in view of Mushkatblat discloses the apparatus as defined in claim 1, wherein the instructions further cause the processor to determine the final rating based on a nonsubscriber penetration, the nonsubscriber penetration corresponding to a proportion of the subscriber households in the first geographic area relative to all households in the first geographic area (determining the final rating based on nonsubscriber ratio/percentage corresponding to proportion/percentage/ratio of subscriber household in a particular local area relative to all household in the first area which includes subscribers and non-subscribers – see include, but are not limited to, Doe: figures 3, 6-8D, paragraphs 0012, 0014, 0024, 0026-0029).
Regarding claim 7, Doe in view of Mushkatblat discloses the apparatus as defined in claim 1, wherein the instructions further cause the processor to: determine an adjusted rating for the media in the first geographic area based on a partial coverage of the media in the first geographic area; and determine the final rating based on the adjusted rating (determine an adjusting rating/factor for the media in the first geographic area based on a particular coverage/samples of the media in the first geographic area, and determining the final rating based on the adjusted rating – see include, but are not limited to, figures 1, 5-6, 8a-8b, paragraphs 0012-0015, 0020, 0022).
Regarding claim 8, limitations of a non-transitory computer readable medium that correspond to the limitations of the apparatus as cited in claim 1 are analyzed as discussed in the rejection of claim 1. Particularly, Doe in view of Mushkatblat discloses a non-transitory computer readable medium comprising instructions that, when executed, cause a machine to at least:
determine an initial rating for media provided in a first geographic area based on return path data (RPD) tuning information obtained from RPD devices in subscriber households in the first geographic area, wherein the subscriber households subscribe to a content provider that provides the media through the RPD devices;
determine a first panelist rating for the media provided in a second geographic area based on first panel tuning information obtained from first metering devices in a first subset of panelist households in the second geographic area, wherein the first subset of the panelist households do not subscribe to the content provider;
determine a nonsubscriber calibration factor based on the first panelist rating; and
determine a final rating for the media in the first geographic area by modifying the initial rating based on the nonsubscriber calibration factor (see similar discussion in the rejection of claim 1 and figure 9, paragraph 0038).
Regarding claims 9-14, the additional limitations of the non-transitory computer readable medium that correspond the additional limitations of the apparatus in claims 2-7 are analyzed as discussed in the rejection of claims 2-7.
Regarding claim 15, limitations of an apparatus as claimed that correspond to the limitations of the limitations in claim 1 are analyzed as discussed in the rejection of claim 1, wherein “means” correspond to “processor” in claim 1. Particularly, Doe in view of Mushkatblat discloses an apparatus for calculating ratings for media, the apparatus comprising: means for calculating ratings to: determine an initial rating for the media provided in a first geographic area based on return path data (RPD) tuning information obtained from RPD devices in subscriber households in the first geographic area, wherein the subscriber households subscribe to a content provider that provides the media through the RPD devices; and determine a first panelist rating for the media provided in a second geographic area based on first panel tuning information obtained from first metering devices in a first subset of panelist households in the second geographic area, wherein the first subset of the panelist households do not subscribe to the content provider; and means for calculating calibration factors to determine a nonsubscriber calibration factor based on the first panelist rating, the ratings calculating means to determine a final rating for the media in the first geographic area by modifying the initial rating based on the nonsubscriber calibration factor (see similar discussion in rejection of claim 1).
Regarding claims 16-20, additional limitations that correspond the additional limitations in claims 2-6 and are analyzed as discussed in the rejection of claims 2-6.
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 §§ 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.
Claims 1-20 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,277,944. Although the conflicting claims are not identical, they are not patentably distinct from each other because the instant claims 1-20 and Patent claims 1-20 are directed to the same invention with a different in scope and are therefore an obvious variant thereof or the invention defined in instant claims 1-20 is an obvious variation of the invention defined in the patent claims 1-20 because for limitations in the instant claims that are not recited in patent claims are known by prior art (see for example, prior arts discussed in the rejection above). It would have been obvious to one of ordinary skill in the art combine in patent claims with the well-known teachings as taught in the prior art cited above for the benefit as discussed in the prior art rejection above.
Allowance of claims 1-20 would result in an un-warranted timewise extension of the monopoly granted for the invention as defined in claims 1-20 of Patent No. 10277944.
Claims 1-20 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 10,560,744. Although the conflicting claims are not identical, they are not patentably distinct from each other because the instant claims 1-20 and Patent claims 1-17 are directed to the same invention with a different in scope and are therefore an obvious variant thereof or the invention defined in instant claims 1-20 is an obvious variation of the invention defined in the patent claims 1-17 because for limitations in the instant claims that are not recited in patent claims are known by prior art (see for example, prior arts discussed in the rejection above). It would have been obvious to one of ordinary skill in the art combine in patent claims with the well-known teachings as taught in the prior art cited above for the benefit as discussed in the prior art rejection above.
Allowance of claims 1-20 would result in an un-warranted timewise extension of the monopoly granted for the invention as defined in claims 1-17 of Patent No. 10,560,744.
Claims 1-20 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 11,089,365. Although the conflicting claims are not identical, they are not patentably distinct from each other because the instant claims 1-20 and Patent claims 1-21 are directed to the same invention with a different in scope and are therefore an obvious variant thereof or the invention defined in instant claims 1-20 is an obvious variation of the invention defined in the patent claims 1-21 because for limitations in the instant claims that are not recited in patent claims are known by prior art (see for example, prior arts discussed in the rejection above). It would have been obvious to one of ordinary skill in the art combine in patent claims with the well-known teachings as taught in the prior art cited above for the benefit as discussed in the prior art rejection above.
Allowance of claims 1-20 would result in an un-warranted timewise extension of the monopoly granted for the invention as defined in claims 1-21 of Patent No. 11,089,365.
Claims 1-20 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11,405,690. Although the conflicting claims are not identical, they are not patentably distinct from each other because the instant claims 1-20 and Patent claims 1-18 are directed to the same invention with a different in scope and are therefore an obvious variant thereof or the invention defined in instant claims 1-20 is an obvious variation of the invention defined in the patent claims 1-18 because for limitations in the instant claims that are not recited in patent claims are known by prior art (see for example, prior arts discussed in the rejection above). It would have been obvious to one of ordinary skill in the art combine in patent claims with the well-known teachings as taught in the prior art cited above for the benefit as discussed in the prior art rejection above.
Allowance of claims 1-20 would result in an un-warranted timewise extension of the monopoly granted for the invention as defined in claims 1-18 of Patent No. 11,405,690.
Claims 1-20 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11,716,511. Although the conflicting claims are not identical, they are not patentably distinct from each other because the instant claims 1-20 and Patent claims 1-18 are directed to the same invention with a different in scope and are therefore an obvious variant thereof or the invention defined in instant claims 1-20 is an obvious variation of the invention defined in the patent claims 1-18 because for limitations in the instant claims that are not recited in patent claims are known by prior art (see for example, prior arts discussed in the rejection above). It would have been obvious to one of ordinary skill in the art combine in patent claims with the well-known teachings as taught in the prior art cited above for the benefit as discussed in the prior art rejection above.
Allowance of claims 1-20 would result in an un-warranted timewise extension of the monopoly granted for the invention as defined in claims 1-18 of Patent No. 11,716,511.
Claims 1-20 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12170818. Although the conflicting claims are not identical, they are not patentably distinct from each other because the instant claims 1-20 and Patent claims 1-20 are directed to the same invention with a different in scope and are therefore an obvious variant thereof or the invention defined in instant claims 1-20 is an obvious variation of the invention defined in the patent claims 1-20 because for limitations in the instant claims that are not recited in patent claims are known by prior art (see for example, prior arts discussed in the rejection above). It would have been obvious to one of ordinary skill in the art combine in patent claims with the well-known teachings as taught in the prior art cited above for the benefit as discussed in the prior art rejection above.
Allowance of claims 1-20 would result in an un-warranted timewise extension of the monopoly granted for the invention as defined in claims 1-20 of Patent No. 12170818.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Galuten (US 20160071058) discloses system and method for creating, modifying, and distributing video content using crowd sourcing and crowd curation including input from registered users and non-registered users.
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/AN SON P HUYNH/Primary Examiner, Art Unit 2426
March 10, 2026