DETAILED ACTION
Claims 1-20 are pending. Claims 1-20 are considered in this Office 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 1-20 of the current application, hereby known as ‘686, are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 8, and 15 of U.S. Patent No. 12,165,084, hereby known as ‘084. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding Claims 1, 8, and 15, Claims 1, 8, and 15 of ‘686 recite substantially similar steps of '084 Claims 1, 8, and 15, respectively.
Claims 1, 8, and 15 of ‘686 recite the limitations of:
obtaining (i) first return path data associated with a plurality of media devices of panelist households and (ii) panel meter data associated with the plurality of media devices and obtained from meters of the panelist households;
classifying view segments of the first return path data based on whether the first return path data for respective ones of the view segments matches the panel meter data;
based on a first set of features generated from the classified view segments, training a machine learning algorithm to output on/off determinations for media devices;
obtaining second return path data associated with a media device of a non-panelist household, different from the panelist households; and
applying the second return path data to the machine learning algorithm trained based on the first set of features to output an on/off determination for the media device
Whereas Claims 1, 8, and 15 of ‘084 states:
obtaining, from a media service provider, first return path data including a portion of the first return path data from at least one set-top box (STB) in a plurality of common homes, wherein each common home of the plurality of common homes includes a respective STB coupled to a respective media device and a respective meter coupled to the respective media device;
accessing, at data storage of an audience measurement entity (AME), the first return path data and panel meter data obtained from the respective meters of the plurality of common homes;
classifying view segments associated with at least one common home of the plurality of common homes as common homes data based on whether first return path data in respective ones of the view segments matches the panel meter data to determine labeled view segments;
training a machine learning algorithm, based on a first set of features, to output media device on/off determinations for media devices, the first set of features generated from the labeled view segments;
obtaining, from the media service provider, second return path data;
applying second return path data to the machine learning algorithm trained based on the first set of features to output a first on/off determination associated with a media device represented in the second return path data;
further training the machine learning algorithm based on a second set of features, the second set of features generated from the labeled view segments; and
applying the second return path data to the machine learning algorithm trained based on the second set of features to output a second on/off determination associated with the media device represented in the second return path data.
The broader claims of the instant application are anticipated by the narrower claims of the patent. See MPEP 804(II)(B)(1).
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.
Alice - Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claims 1, 8, and 15 recite limitations for obtaining (i) first return path data associated with a plurality of media devices of panelist households and (ii) panel meter data associated with the plurality of media devices and obtained from meters of the panelist households (Collecting Information, an Observation, a Mental Process; a Fundamental Economic Process, i.e. marketing to specific groups; a Certain Method of Organizing Human Activity),classifying view segments of the first return path data based on whether the first return path data for respective ones of the view segments matches the panel meter data (Analyzing the Information, an Evaluation, a Mental Process; a Fundamental Economic Process, i.e. marketing to specific groups; a Certain Method of Organizing Human Activity),based on a first set of features generated from the classified view segments, training a machine learning algorithm to output on/off determinations for media devices (Analyzing and Transmitting the Information, an Evaluation and Judgment, a Mental Process; a Fundamental Economic Process, i.e. marketing to specific groups; a Certain Method of Organizing Human Activity), obtaining second return path data associated with a media device of a non-panelist household, different from the panelist households (Collecting Information, an Observation, a Mental Process; a Fundamental Economic Process, i.e. marketing to specific groups; a Certain Method of Organizing Human Activity), and applying the second return path data to the machine learning algorithm trained based on the first set of features to output an on/off determination for the media device (Analyzing and Transmitting the Information, an Evaluation and Judgment, a Mental Process; a Fundamental Economic Process, i.e. marketing to specific groups; a Certain Method of Organizing Human Activity), which under their broadest reasonable interpretation, covers performance of the limitation in the mind for the purposes of a Fundamental Economic Process, i.e. marketing to specific groups, but for the recitation of generic computer components. That is, other than reciting an audience measurement computing system, processor, media devices, and medium, nothing in the claim element precludes the step from practically being performed or read into the mind for the purposes of a Fundamental Economic Process. For example, classifying view segments of the first return path data based on whether the first return path data for respective ones of the view segments matches the panel meter data encompasses a supervisor or data analyst tracking who is watching different shows and putting together groups which are similar, which is an observation, evaluation, and judgment. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas, an observation, evaluation, and judgment. Further, as described above, the claims recite limitations for a Fundamental Economic Process, a “Certain Method of Organizing Human Activity”. Accordingly, the claim recites an abstract idea.
This judicial exception is not integrated into a practical application. In particular, the claim recites the above stated additional elements to perform the abstract limitations as above. The system, media devices, processor, and medium are recited at a high-level of generality (i.e., as a generic software/module performing a generic computer function of storing, retrieving, sending, and processing data) such that they amount to no more than mere instructions to apply the exception using generic computer components. Even if taken as an additional element, the receiving and transmitting steps above are insignificant extra-solution activity as these are receiving, storing, and transmitting data as per the MPEP 2106.05(d). Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception, when considered both individually and as an ordered combination. As discussed above with respect to integration of the abstract idea into a practical application, the additional element being used to perform the abstract limitations stated above amount to no more than mere instructions to apply the exception using generic computer components. Mere instructions to apply an exception using generic computer components cannot provide an inventive concept. The claim is not patent eligible. Applicant’s Specification states:
“[0053]FIG. 7 is a block diagram of an example processor platform structured to execute the example computer readable instructions of FIGS. 3-4 to implement the example media device on/off detector 124 of FIGS. 1-2. The processor platform 700 can be, for example, a server, a personal computer, a workstation, a self-learning machine (e.g., a neural network), a mobile device (e.g., a cell phone, a smart phone, a tablet such as an iPadTM), a personal digital assistant (PDA), an Internet appliance, or any other type of computing device.”
Which shows that any generic computer can be used to perform the abstract limitations, such as a laptop, phone, desktop, etc., and from this interpretation, one would reasonably deduce the aforementioned steps are all functions that can be done on generic components, and thus application of an abstract idea on a generic computer, as per the Alice decision and not requiring further analysis under Berkheimer, but for edification the Applicant’s specification has been used as above satisfying any such requirement. This is “Applying It” by utilizing current technologies. For the receiving and transmitting steps that were considered extra-solution activity in Step 2A above, if they were to be considered additional elements, they have been re-evaluated in Step 2B and determined to be well-understood, routine, conventional, activity in the field. The background does not provide any indication that the additional elements, such as the system, processor, medium, etc., nor the receiving or transmitting steps as above, are anything other than a generic, and the MPEP Section 2106.05(d) indicates that mere collection or receipt, storing, or transmission of data is a well‐understood, routine, and conventional function when it is claimed in a merely generic manner (as it is here). For these reasons, there is no inventive concept. The claim is not patent eligible.
Claims 2-7, 9-14, and 16-20 contain the identified abstract ideas, further narrowing them, with the additional elements of an audience measurement entity, database, and televisions which are all highly generalized as per Applicant’s Specification when considered as part of a practical application or under prong 2 of the Alice analysis of the MPEP, thus not integrated into a practical application, nor are they significantly more for the same reasons and rationale as above.
After considering all claim elements, both individually and in combination, Examiner has determined that the claims are directed to the above abstract ideas and do not amount to significantly more. Therefore, the claims and dependent claims are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter. See Alice Corporation Pty. Ltd. v. CLS Bank International, No. 13–298.
Claim Rejections - 35 USC § 103
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 of this title, 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Sullivan (U.S. Publication No. 2017/006,4358) in view of Time (NPL - Its-time-get-return-path-data-together – JUL 2016).
Regarding Claims 1, 8, and 15, Sullivan, a method and apparatus to estimate demographics of a household, teaches an audience measurement computing system for performing media device on/off detection, the audience measurement computing system comprising: a processor; and a non-transitory computer-readable storage medium, having stored thereon program instructions that, upon execution by the processor ([0090-91] system with a processor, memory, and medium), cause performance of a set of operations comprising:
obtaining (i) first return path data associated with a plurality of media devices of panelist households and (ii) panel meter data associated with the plurality of media devices and obtained from meters of the panelist households ([0054] people meter data is collected which is first return path data associated with a plurality of media devices and consumption events and data are information obtained from the meters of the households);
classifying view segments of the first return path data based on whether the first return path data for respective ones of the view segments matches the panel meter data ([0042-43] view segments are determined for panelists based on the metered data as in [0025] where the data is compared with metered data)
based on a first set of features generated from the classified view segments, training a machine learning algorithm to output estimated data ([0043] machine learning is used to determine features which are used in the machine learning to output estimated data)
obtaining second return path data associated with a media device of a non-panelist household, different from the panelist households ([0050] non-panelist data is collected from the media device of a household); and
applying the second return path data to the machine learning algorithm trained based on the first set of features to output estimated data such as tuning events as in [0049] ([0072] data associated with non-panelist households are used with the features and trainers for the machine learning algorithm)
Although Sullivan teaches a machine learning algorithm which is trained with features from both first path (panelist) and second path (non-panelist) data as above, as well as tuning events such as turning the television or set-top box on or off as in [0049], it does not explicitly call this return path data nor does it teach to output on/off determinations for media devices.
Time teaches return path data being used to out determinations of on and off televisions as on pg. 2 and 3 where the system predicts whether a TV is on or off even if set-box is turned on or off.
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the machine learning algorithms for prediction of both panelists and non-panelists of Sullivan with the prediction of whether a television/media device is on or off of Time as they are both analogous art along with the claimed invention which teach solutions to predicting viewership of people, and the combination would lead to an improved system which would lead to improved audience measurements through more comprehensive approaches as taught on pg. 3 of Time.
Examiner notes Sullivan teaches a medium as in [0090-91].
Regarding Claims 2, 9, and 17, Sullivan teaches wherein the non- panelist households are households that do not include meters associated with an audience measurement entity ([0050] non-panelist data is collected from the media device of a household without meters)
Regarding Claims 3 and 10, Sullivan teaches further comprising a database configured to store return path data and panel meter data ([0052-54] panelist database stores data of the panelist household),
wherein obtaining the first return path data and the panel meter data comprises accessing the first return path data and the panel meter data from the database ([0054] the panelist data is stored and accessed from the database) .
Regarding Claims 5, 12, and 19, Sullivan teaches wherein the first and second on/off determination[[s]] for the media device associated with the second return path data indicate whether, for each of a plurality of viewing segments of the second return path data, the media device was in an on state or in an off state ([0049] the information collected is whether the Set top Box STB is on or off, during viewing segments such as 7 – 7:15 AM etc.)
Regarding Claims 6, 13, and 20, Sullivan teaches wherein the plurality of media devices are televisions ([0025] television sets are used)
Regarding Claims 7 and 14, Sullivan teaches wherein the first return path data is reported by set-top boxes connected to the plurality of media devices ([0024] set-top boxes are used to report information)
Regarding Claim 16, Sullivan teaches wherein the plurality of media devices are media devices of panelist households, wherein the panel meter data is obtained from meters of the panelist households ([0023] panelists have meters which are used to record information of panelists), and wherein the media device associated with the second return path data is a media device of a non-panelist household, different from the panelist households ([0025] non-panelist houses use tuning data from tvs and other media devices).
Allowable Subject Matter
Claims 4, 11, and 18 are objected to as being dependent upon a rejected base claim, but would be allowable if the independent claims were amended in such a way as to overcome the 35 USC 101 rejection and any other rejections.
Conclusion
The prior art made of record is considered pertinent to applicant's disclosure.
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/JOSEPH M WAESCO/Primary Examiner, Art Unit 3683 12/23/2025