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 .
Applicant filed a preliminary amendment cancelling claims 1-20 and adding claims 21-40. Claims 21-40 are now pending.
35 USC § 101
The claims relate to transforming mono or stereo audio data into spatial audio data in an efficient manner, which is not an abstract idea. The claims are therefore directed to statutory subject matter.
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.
Claims 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent Number 12,154,104 B2 (hereinafter “Lyren”). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 21-40 are similar to claims 1-20 of Lyren except that independent claims 21, 29, and 36 of the present application lack the step of transmitting the mono or stereo audio only to the winning computer that is present in the independent claims of Lyren (although such step is recited in dependent claims 23, 31, and 38 of the present application). Claims 21-40 of the present application are therefore obvious over claims 1-20 of Lyren.
Allowable Subject Matter
Claims 21-40 are allowable over the prior art of record, subject to the rejection set forth above.
The following is a statement of reasons for the indication of allowable subject matter:
Upon review of the evidence at hand, it is hereby concluded that the evidence obtained and made of record, alone or in combination, neither anticipates, reasonably teaches, nor renders obvious the below noted features of applicant’s invention as the noted features amount to more than a predictable use of elements in the prior art. With respect to independent claims 21 and 29, the allowable features include “selecting one of the other computers as a winning computer that provides a lowest bid to process the mono or stereo sound into the binaural sound”; and “processing, by the winning computer, the mono or stereo sound into the binaural sound with head-related transfer functions (HRTFs)". With respect to independent claim 36, the allowable features include “a processor that executes code to select, from the bids received from the computers, a winning computer with a lowest bid for processing the sound in the digital media from the mono or stereo sound to the binaural sound”; and “a transmitter that transmits the digital media with the mono or stereo sound to the winning computer”.
U.S. Patent Application Publication 2017/0134877 A1 (hereinafter “Faller”) discloses processing mono sound into binaural sound with head-related transfer functions. Faller ¶ 0121. Faller does not, however, explicitly disclose the above limitations.
In addition to the above, the Examiner emphasizes the interrelation of the above distinguishing elements with the remainder of each respective claim element, and further notes that it is the interrelation that truly distinguishes Applicant's invention from the evidence at hand. Moreover, none of the evidence at hand teaches or suggests the combination of features claimed, nor does there exist an appropriate rationale for further modification of the evidence at hand.
It is hereby asserted by the Examiner that, in light of the above and in further deliberation over all of the evidence at hand, that the claims are allowable as the evidence at hand does not anticipate the claims and does not render obvious any further modification of the references to a person of ordinary skill in the art.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ETHAN D CIVAN whose telephone number is (571)270-3402. The examiner can normally be reached Monday-Thursday 8-6:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeffrey A Smith can be reached at (571) 272-6763. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ETHAN D. CIVAN
Primary Examiner
Art Unit 3688
/ETHAN D CIVAN/Primary Examiner, Art Unit 3688