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.
Status of the Claims
The pending claims in the present application are originally-filed claims 1-6 dated 29 November 2024.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 29 November 2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the IDS is being considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-6 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claims contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. For example, claim 1 recites the following limitations: “content buying and selling device,” “registration unit configured to register,” “trend determination unit configured to determine,” and “auction process unit configured to set.” These limitations are being interpreted under 35 USC 112(f) (see below). These limitations have been found indefinite under 35 USC 112(b) (see below). Per MPEP 2181(IV), “[a] means- (or step-) plus-function limitation that is found to be indefinite under 35 U.S.C. 112(b) based on failure of the specification to disclose corresponding structure, material or act that performs the entire claimed function also lacks adequate written description and may not be sufficiently enabled to support the full scope of the claim. Also, “[w]hen a claim containing a computer-implemented 35 U.S.C. 112(f) claim limitation is found to be indefinite under 35 U.S.C. 112(b) for failure to disclose sufficient corresponding structure (e.g., the computer and the algorithm) in the specification that performs the entire claimed function, it will also lack written description under section 112(a). See MPEP § 2163.03, subsection VI.” (MPEP 2181(IV).) For at least these reasons, claim 1 is rejected under 35 USC 112(a). Claims 2-5 depend from claim 1 and also recite one or more of the aforementioned problematic limitations. Claim 6 recites limitations similar to those in claim 1, and thus, is similarly deficient.
Claims 1-6 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The recited “content buying and selling device,” “registration unit configured to register,” “trend determination unit configured to determine,” and “auction process unit configured to set” limitations of claim 1 invoke 35 USC 112(f) or pre-AIA 35 USC 112, sixth paragraph (see below). However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The elements of the aforementioned limitations are described primarily in paras. [0009], [0015], [0017]-[0021], and [0023]-[0026]. The cited paragraphs are, and the disclosure as a whole is, devoid of any structure, material, or acts for performing the functions in the aforementioned limitations. Therefore, claim 1 is indefinite and is rejected under 35 USC 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. Claims 2-5 are similarly rejected as a result of their dependency from claim 1, and because each of them recites one or more of the aforementioned problematic limitations. Claim 6 recites limitations similar to those in claim 1, and thus, is similarly deficient.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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 following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
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 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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “content buying and selling device,” “registration unit configured to register,” “trend determination unit configured to determine,” and “auction process unit configured to set” in claim 1. One or more of the limitations also are recited in claims 2-5 (that depend from claim 1). Claim 6 recites limitations similar to those in claim 1, and thus, also is implicated.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/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. Also, in connection with the claim interpretation under 35 USC 112(f), claims 1-6 are rejected under 35 USC 112(a) and 112(b), as noted in the 35 USC 112 rejection section above.
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 1-6 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The paragraphs below provide rationales for the rejection. The rationales are based on the multi-step subject matter eligibility test outlined in MPEP 2106.
Step 1 of the eligibility analysis involves determining whether a claim falls within one of the four enumerated categories of patentable subject matter recited in 35 USC 101. (See MPEP 2106.03(I).) That is, Step 1 asks whether a claim is to a process, machine, manufacture, or composition of matter. (See MPEP 2106.03(II).) Referring to the pending claims, the “device” of claims 1-5 constitutes a machine under 35 USC 101, and the “method” of claim 6 constitutes a machine under the statute. Accordingly, claims 1-6 meet the criteria of Step 1 of the eligibility analysis. The claims, however, fail to meet the criteria of subsequent steps of the eligibility analysis, as explained in the paragraphs below.
The next step of the eligibility analysis, Step 2A, involves determining whether a claim is directed to a judicial exception. (See MPEP 2106.04(II).) This step asks whether a claim is directed to a law of nature, a natural phenomenon (product of nature) or an abstract idea. (See id.) Step 2A is a two-prong inquiry. (See MPEP 2106.04(II)(A).) Prong One and Prong Two are addressed below.
In the context of Step 2A of the eligibility analysis, Prong One asks whether a claim recites an abstract idea, law of nature, or natural phenomenon. (See MPEP 2106.04(II)(A)(1).) Using claim 1 as an example, the claim recites the following abstract idea limitations:
“A content buying and selling ... comprising: ...” - See below regarding MPEP 2106.04(a), certain methods of organizing human activity, and mental processes
“... register target content whose ownership is bought and sold by auction; ...” - See below regarding MPEP 2106.04(a), certain methods of organizing human activity, and mental processes
“... store the content registered ...” - See below regarding MPEP 2106.04(a), certain methods of organizing human activity, and mental processes
“... determine whether the content registered ... or an item related to the content is a trend, and to determine whether the content or the item related to the content has become a trend in a short period of time that is a predetermined time when determining that the content or the item related to the content is a trend; and ...” - See below regarding MPEP 2106.04(a), certain methods of organizing human activity, and mental processes
“... set a first auction starting price as an auction starting price of the content when ... determined that the content or the item related to the content is a trend and has not become a trend in a short period of time, and to set a second auction starting price, which is higher than the first auction starting price, as an auction starting price of the content when ... determined that the content or the item related to the content is a trend and has become a trend in a short period of time, thereby putting the content up for auction.” - See below regarding MPEP 2106.04(a), certain methods of organizing human activity, and mental processes
The above-listed limitations of independent claim 1, when applying their broadest reasonable interpretations in light of their context in the claim as a whole, fall under enumerated groupings of abstract ideas outlined in MPEP 2106.04(a). For example, limitations of the claim can be characterized as: fundamental economic principles or practices, including auctioning and pricing; commercial interactions, including marketing or sales activities or behaviors related to auctioning; and managing interactions between people for purposes of auctions, which fall under the certain methods of organizing human activity grouping of abstract ideas (see MPEP 2106.04(a)). Limitations of the claim also can be characterized as: concepts performed in the human mind, including observation (e.g., the recited “determine” and “set” steps), which fall under the mental processes grouping of abstract ideas (see MPEP 2106.04(a)). Accordingly, for at least these reasons, claim 1 fails to meet the criteria of Step 2A, Prong One of the eligibility analysis.
In the context of Step 2A of the eligibility analysis, Prong Two asks if the claim recites additional elements that integrate the judicial exception into a practical application. (See MPEP 2106.04(II)(A)(2).) Continuing to use claim 1 as an example, the claim recites the following additional element limitations:
The claimed “content buying and selling” is performed by a “device” - See below regarding MPEP 2106.05(a)-(c) and (f)-(h)
The claimed “register” step is performed by a “registration unit” - See below regarding MPEP 2106.05(a)-(c) and (f)-(h)
The claimed “store” step is performed by a “database” - See below regarding MPEP 2106.05(a)-(c) and (f)-(h)
The claimed “determine” step is performed by a “trend determination unit” - See below regarding MPEP 2106.05(a)-(c) and (f)-(h)
The claimed “set” step is performed by an “auction process unit” - See below regarding MPEP 2106.05(a)-(c) and (f)-(h)
The above-listed additional element limitations of claim 1, when applying their broadest reasonable interpretations in light of their context in the claim as a whole, are analogous to: accelerating a process of analyzing audit log data when the increased speed comes solely from the capabilities of a general-purpose computer, and mere automation of manual processes, which courts have indicated may not be sufficient to show an improvement in computer-functionality (see MPEP 2106.05(a)(I)); a commonplace business method being applied on a general purpose computer, and selecting a particular generic function for computer hardware to perform from within a range of fundamental or commonplace functions performed by the hardware, which courts have indicated may not be sufficient to show an improvement to technology (see MPEP 2106.05(a)(II)); a general purpose computer that applies a judicial exception, such as an abstract idea, by use of conventional computer functions, and merely adding a generic computer, generic computer components, or a programmed computer to perform generic computer functions, which do not qualify as a particular machine or use thereof (see MPEP 2106.05(b)(I)); a machine that is merely an object on which the method operates, which does not integrate the exception into a practical application (see MPEP 2106.05(b)(II)); use of a machine that contributes only nominally or insignificantly to the execution of the claimed method, which does not integrate a judicial exception (see MPEP 2106.05(b)(III)); transformation of an intangible concept such as a contractual obligation or mental judgment, which is not likely to provide significantly more (see MPEP 2106.05(c)); use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea, a commonplace business method or mathematical algorithm being applied on a general purpose computer, and requiring the use of software to tailor information and provide it to the user on a generic computer, which courts have found to be mere instructions to apply an exception, because they do no more than merely invoke computers or machinery as a tool to perform an existing process (see MPEP 2106.05(f)); mere data gathering in the form of obtaining information about transactions using the Internet to verify transactions and consulting and updating an activity log, which courts have found to be insignificant extra-solution activity (see MPEP 2106.05(g)); and specifying that the abstract idea of monitoring audit log data relates to transactions or activities that are executed in a computer environment, because this requirement merely limits the claims to the computer field, i.e., to execution on a generic computer, which courts have described as merely indicating a field of use or technological environment in which to apply a judicial exception (see MPEP 2106.05(h)). For at least these reasons, claim 1 fails to meet the criteria of Step 2A, Prong Two of the eligibility analysis.
The next step of the eligibility analysis, Step 2B, asks whether a claim recites additional elements that amount to significantly more than the judicial exception. (See MPEP 2106.05(II).) The step involves identifying whether there are any additional elements in the claim beyond the judicial exceptions, and evaluating those additional elements individually and in combination to determine whether they contribute an inventive concept. (See id.) The ineligibility rationales applied at Step 2A, Prong Two, also apply to Step 2B. (See id.) For all of the reasons covered in the analysis performed at Step 2A, Prong Two, independent claim 1 fails to meet the criteria of Step 2B. As a result, claim 1 is rejected under 35 USC 101 as ineligible for patenting.
Regarding claims 2-5, the claims depend from claim 1, and expand upon limitations introduced by claim 1. The dependent claims are rejected at least for the same reasons as claim 1. For example, the dependent claims recite abstract idea elements similar to the abstract idea elements of claim 1, that fall under the same abstract idea groupings as the abstract idea elements of claim 1 (e.g., the “content buying and selling device according to claim 1, ... set: a first auction period as an auction period of the content when ... determined that the content or the item related to the content has not become a trend in a short period of time; and a second auction period, which is shorter than the first auction period, as an auction period of the content when ... has determined that the content or the item related to the content has become a trend in a short period of time” of claim 2, the “content buying and selling ... according to claim 1, wherein ... determine: whether the content is a trend by assigning a first weighting to trend information based on a frequency with which a content name of the content is searched ... or to trend information based on a frequency with which the content name is used ...; and whether the item related to the content is a trend by assigning a second weighting, which is smaller than the first weighting, to trend information based on a frequency with which a related word indicating the item related to the content is searched ... or to trend information based on a frequency with which the related word is used” of claim 3, the “content buying and selling ... according to claim 2, wherein ... determine: whether the content is a trend by assigning a first weighting to trend information based on a frequency with which a content name of the content is searched ... or to trend information based on a frequency with which the content name is used ...; and whether the item related to the content is a trend by assigning a second weighting, which is smaller than the first weighting, to trend information based on a frequency with which a related word indicating the item related to the content is searched ... or to trend information based on a frequency with which the related word is used ..., and ... register in the content, the first auction starting price, the second auction starting price, the first auction period, the second auction period, the content name, or the related word” of claim 4, and the “content buying and selling ... according to claim 3, wherein ... divide the related word into a plurality of groups, and differentiate the second weighting in each group” of claim 5). The dependent claims recite further additional elements that are similar to the additional elements of claim 1, that fail to warrant eligibility for the same reasons as the additional elements of claim 1 (e.g., the “device ... wherein the auction process unit is configured to ... the trend determination unit has ... the trend determination unit has” of claim 2, the “device ... wherein the trend determination unit is configured to ... by a search engine ... in a social networking service ... by the search engine ... in the social networking service” of claim 3, the “device ... wherein the trend determination unit is configured to ... by a search engine ... in a social networking service ... by the search engine ... in the social networking service, ... the registration unit is configured to ... as metadata” of claim 4, and the “device ... the trend determination unit is configured to” of claim 5). Accordingly, claims 2-5 also are rejected as ineligible under 35 USC 101.
Regarding claim 6, while the claim is of different scope relative to claim 1, the claim recites limitations similar to the limitations of claim 1. As such, the rejection rationales applied to reject claim 1 also apply for purposes of rejecting claim 6. Claim 6 is, therefore, also rejected as ineligible under 35 USC 101.
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, 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 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, 2, and 6 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Pat. No. 11,367,060 B1 to Barbashin et al. (hereinafter referred to as “Barbashin”), in view of U.S. Pat. App. Pub. No. 2021/0264517 A1 to Harris et al. (hereinafter referred to as “Harris”).
Regarding claim 1, Barbashin discloses the following limitations:
“A content buying and selling device comprising: ...” - Barbashin discloses, “the disclosure provides computer-implemented systems and methods for creating a collaborative Non-Fungible Token (NFT) that provides proof of ownership of a digital object” (col. 3, ll. 17-20), and “An embodiment may involve auctioning the NFT online and transferring ownership of the NFT” (col. 4, ll. 30 and 31). The system and method for creating NFTs for digital objects, and then auctioning them to transfer ownership, in Barbashin, reads on the recited limitation.
“... a registration unit configured to register target content whose ownership is bought and sold by auction; ...” - See the aspects of Barbashin that have been referenced above. Barbashin also discloses, “In FIG. 2, in an embodiment, a Non-Fungible Token creation and monetization method 200 begins at step 202, in which the process is programmed to facilitate uploading of digital content” (col. 8, ll. 50-53), and “At step 212, the process is programmed to receive a selection, from a user computer, of digital content for auction. The selection may include one or more uploaded content items that the creator may remix or combine using programmed tools provided by the digital creation logic 104. The content may be a video, music, digital imagery, electronic text, or other digital content” (col. 8, l. 64 to col. 9, l. 3). Elements of the system for creating NFTs for digital content for auctioning of the digital content to effect transfer of ownership, in Barbashin, reads on the recited limitation.
“... a database configured to store the content registered in the registration unit; ...” - Barbashin discloses, “data storage logic 106 is programmed, in response, to cause the uploaded content to be stored in third-party database 130 or an internal database 116. The internal database 116 may an FTP site, cloud storage, relational database, data lake, or other system for data storage” (col. 7, ll. 20-25).
The combination of Barbashin and Harris (hereinafter referred to as “Barbashin/Harris”) teaches limitations below of claim 1 that do not appear to be disclosed in their entirety by Barbashin:
“... a trend determination unit configured to determine whether the content registered in the registration unit or an item related to the content is a trend, and to determine whether the content or the item related to the content has become a trend in a short period of time that is a predetermined time when determining that the content or the item related to the content is a trend; and ...” - Barbashin discloses, “a collaborative NFT may also comprise a reference to a digital animated frame that may be associated with a level of rarity, popularity, or prestige. The animated digital frame may be caused by distributed computer system 110 executing project management logic 102 interoperating with data storage logic 106 to be stored in the same database as the digital object associated with a collaborative NFT, or another data storage system. When the digital object is viewed by a user on a website, the digital object may be graphically displayed inside the digital animated frame. The frame may comprise still and/or animated digital imagery featuring various colors and designs. In embodiments, a default frame is created for the corresponding digital object when an NFT is minted. As the digital objected gains popularity, the frame may evolve. The frame may dynamically update based on the popularity of the digital object defined by a number of views or likes, or by another metric. The frame of a digital object which becomes a popular or viral video may evolve to become a gold frame. In embodiments, extremely popular digital objects may receive a rare, colorful frame” (col. 13, ll. 44-64). Elements of the system that determine the digital object corresponding to the minted NFT is gaining in popularity, and to determine whether the digital object corresponding to the NFT has become viral, in Barbashin, arguably reads on the recited limitations. The examiner asserts that something being not just popular, but viral, indicates that it has become a trend in a short period of time that is predetermined. The examiner acknowledges, however, that the period of time aspects are not explicitly stated in Barbashin. The applicant may contend, therefore, that Barbashin does not disclose elements that read on the recited “determine whether the content or the item related to the content has become a trend in a short period of time that is a predetermined time when determining that the content or the item related to the content is a trend” limitation. Harris discloses, “Many Internet meme creators and promotors hope to have an Internet meme become “viral,” where sharing of a viral Internet meme proliferates quickly over a short period of time” (para. [0025]). The determining of memes being viral based on proliferation of the memes quickly over short periods of time, in Harris, reads on the recited “determine whether the content or the item related to the content has become a trend in a short period of time that is a predetermined time when determining that the content or the item related to the content is a trend” limitation.
“... an auction process unit configured ...” - See the aspects of Barbashin that have been referenced above. Elements of the system that perform the auctions, in Barbashin, read on the recited limitation.
“... to set a first auction starting price as an auction starting price of the content when the trend determination unit has determined that the content or the item related to the content is a trend and has not become a trend in a short period of time, and ...” - See the aspects of Barbashin and Harris that have been referenced above. Barbashin also discloses, “The process is programmed to receive from the originator certain parameters for the auction, which may include a starting date, a completion date, a starting price, or other parameters. Once the originator is satisfied with the selection of digital content, they may provide digital input to initiate the NFT minting process and the auction according to the set parameters and the method 200 is programmed to receive the digital input” (col. 9, ll. 11-18). Elements of the system that receive the parameters and set the starting price for the digital object after other elements of the system have determined that the digital object has become popular, but not viral, in Barbashin, wherein virality is associated with proliferation over a short period of time, per Harris, reads on the recited limitation. Additionally, Harris also discloses, “When the viral score (as calculated above) crosses specific thresholds, the trading platform automatically places buy offers at a higher price than the original base price” (para. [0097]). Setting prices lower for digital objects that have not reached viral status, in Harris, reads on the recited limitation.
“... to set a second auction starting price, which is higher than the first auction starting price, as an auction starting price of the content when the trend determination unit has determined that the content or the item related to the content is a trend and has become a trend in a short period of time, thereby putting the content up for auction.” - See the aspects of Barbashin and Harris that have been referenced above. Elements of the system that receive the parameters and set the starting price for the digital object after other elements of the system have determined that the digital object has become viral (not just popular) in Barbashin, wherein virality is associated with proliferation over a short period of time, per Harris, reads on the recited limitation. Additionally, setting prices higher for digital objects that have reached viral status, in Harris, reads on the recited limitation.
Harris discloses, “facilitating an Internet meme economy” (Abstract), similar to the claimed invention and to Barbashin. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the popularity and virality determination aspects, of Barbashin, to include the virality features and pricing, of Harris, to offer a way for users to profit from digital content, per Harris (see para. [0094]).
Regarding claim 2, Barbashin/Harris teaches the following limitations:
“The content buying and selling device according to claim 1, wherein the auction process unit is configured to set: a first auction period as an auction period of the content when the trend determination unit has determined that the content or the item related to the content has not become a trend in a short period of time; and ...” - See the aspects of Barbashin and Harris that have been referenced above. Elements of the system that establish the start date and the completion date for the auction after other elements of the system determined that the digital object has gained in popularity but has not become viral, in Barbashin, according to the timing for virality, of Harris, reads on the recited limitation.
“... a second auction period, which is shorter than the first auction period, as an auction period of the content when the trend determination unit has determined that the content or the item related to the content has become a trend in a short period of time.” - See the aspects of Barbashin and Harris that have been referenced above. Elements of the system that establish the start date and the completion date for the auction after other elements of the system determined that the digital object has gained in popularity and reached virality, in Barbashin, according to the timing for virality, of Harris, reads on the recited limitation. The rationales for combining the cited references, from the rejection of claim 1, also apply to this rejection of claim 2.
Regarding claim 6, while the claim is of different scope relative to claim 1, the claim recites limitations similar to those recited by claim 1. As such, the rationales applied for purposes of rejecting claim 1 also apply for purposes of rejecting claim 6. Claim 6 is, therefore, also rejected under 35 USC 103 as obvious in view of Barbashin/Harris.
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Barbashin, in view of Harris, and further in view of WIPO Int’l Pub. No. 2015/105718 A1 to Hijazi (hereinafter referred to as “Hijazi”).
Regarding claim 3, the combination of Barbashin, Harris, and Hijazi (hereinafter referred to as “Barbashin/Harris/Hijazi”) teaches limitations below that do not appear to be taught in their entirety by Barbashin/Harris:
“The content buying and selling device according to claim 1, wherein the trend determination unit is configured to determine: whether the content is a trend by assigning a first weighting to trend information based on a frequency with which a content name of the content is searched by a search engine or to trend information based on a frequency with which the content name is used in a social networking service; and ...” - Hijazi discloses, “In some examples, each item of digital content (e.g., image) can be associated with a respective popularity score. In some examples, a popularity scoring service can process the image and/or parameters associated with the image to determine the popularity score for the image. Example parameters can include a number of impressions (e.g., a number of times users have viewed the image), a number of times that the image has been shared by other users, a number of times the image has been surfaced in search results, a number of unique tags associated with the image, a number of times that the image has been embedded in third-party services (e.g., third-party web sites), a number of embedded impressions (e.g., a number of times users have viewed the image in third- party services), a number of conversions that were initiated from the image, a number of comments associated with the image, a rate of rise associated with the image, and locations (geo-locations) of users that have viewed the image. In some examples, parameters that are used to determine the popularity score can be weighted. In this manner, less relevant parameters have less influence on the popularity score than do more relevant parameters” (p. 11, l. 28 to p. 12, l. 8). Determining the popularity of content by weighting parameters for determining popularity, including the number of times content has surfaced in search results, in Hijazi, reads on the recited limitation.
“... whether the item related to the content is a trend by assigning a second weighting, which is smaller than the first weighting, to trend information based on a frequency with which a related word indicating the item related to the content is searched by the search engine or to trend information based on a frequency with which the related word is used in the social networking service.” - See the aspects of Hijazi that have been referenced above. Determining the popularity of content by weighting parameters for determining popularity, including the number of comments associated with the image, wherein said parameter is one that is less relevant for having less influence on popularity, in Hijazi, reads on the recited limitation.
Hijazi discloses “a social networking and e-commerce platform that enables users to share digital content and received compensation based on the digital content” (p. 1, ll. 11-13), similar to the claimed invention and to Barbashin/Harris. It would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the determining of popularity, in Barbashin/Harris, to include consideration of parameters and weights, as in Hijazi, for more accurately determining popularity by accounting for higher or lower relevance of some parameters as compared to others, per Hijazi (see p. 11, l. 28 to p. 12, l. 8).
Regarding claim 4, Barbashin/Harris/Hijazi teaches the following limitations:
“The content buying and selling device according to claim 2, wherein the trend determination unit is configured to determine: whether the content is a trend by assigning a first weighting to trend information based on a frequency with which a content name of the content is searched by a search engine or to trend information based on a frequency with which the content name is used in a social networking service; and ...” - See the aspects of Hijazi that have been referenced above. Determining the popularity of content by weighting parameters for determining popularity, including the number of times content has surfaced in search results, in Hijazi, reads on the recited limitation.
“... whether the item related to the content is a trend by assigning a second weighting, which is smaller than the first weighting, to trend information based on a frequency with which a related word indicating the item related to the content is searched by the search engine or to trend information based on a frequency with which the related word is used in the social networking service, and ...” - See the aspects of Hijazi that have been referenced above. Determining the popularity of content by weighting parameters for determining popularity, including the number of comments associated with the image, wherein said parameter is one that is less relevant for having less influence on popularity, in Hijazi, reads on the recited limitation.
“... the registration unit is configured to register in the content, the first auction starting price, the second auction starting price, the first auction period, the second auction period, the content name, or the related word as metadata.” - See the aspects of Barbashin that have been referenced above. Barbashin also discloses, “the metadata file comprising one or more links to one or more corresponding digital assets associated with the NFT” (Abstract). The links to the digital assets, in Barbashin, read on the recited limitation. A link is a descriptor, and thus, can act as a name.
Regarding claim 5, Barbashin/Harris/Hijazi teaches the following limitations:
“The content buying and selling device according to claim 3, wherein the trend determination unit is configured to divide the related word into a plurality of groups, and differentiate the second weighting in each group.” - See the aspects of Hijazi that have been referenced above. The weighting of the popularity parameter indicative of the number of unique tags associated with the content, in Hijazi, reads on the recited limitation.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Such prior art includes the following:
U.S. Pat. App. Pub. No. 2008/0147566 A1 to Malik discloses, “In a computer system, online auction data is retrieved by an auction analysis application program to generate recommendations for buying and selling auction items to auction participants. The auction participants may be either auction buyers or auction sellers. Profile data and auction item historical data associated with one or more auction participants is collected at the computer system from an auction website over a communication network. An output is then generated based on the profile data and the auction item historical data. The output may include recommendations for an auction seller and an auction buyer which may be utilized to increase sales of an auction item and to obtain a lowest price for an auction item.” (Abstract.)
U.S. Pat. App. Pub. No. 2014/0129364 A1 to Corrigan discloses, “Various component values of original content items are extracted via an initial publication and republication of content items. An original, unpublished content item is initially made available for discovery and purchase by different content distributors. When a content distributor first purchases the content item for publication, it is no longer available to other content distributors for an initial time period which can be configured based on different component values of the content item. Upon the expiry of the initial time period, the content item is again provided to various content distributors for republication.” (Abstract.)
Nas, Leena. “TikTok Star Auctioning Viral Video as $500,000 NFT.” TheRichest online, 21 March 2021 (last accessed on 18 February 2026 via https://www.therichest.com/luxury/tiktok-star-nft-viral-video/).
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/THOMAS YIH HO/Primary Examiner, Art Unit 3624