Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1, 9, 17 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,184,932 in view of Momeyer. Claims 9, and 17, and claims 9 and 15 of the Parent are analyzed with using the same analysis below.
Application 18/985,772
1. A method comprising:
determining, by a computing device, that the computing device is presenting media;
in response to the determining that the computing device is presenting media, collecting data from a sensor of the computing device while the computing device is presenting the media;
detecting, by the computing device based on the data, a spatial condition change of the computing device;
determining, by the computing device based on the spatial condition change, an attention level; and
transmitting, by the computing device, the attention level to a remote computing system.
U.S. Patent No. 12.184,932
1. An audience measurement computing system comprising:
at least one processor; and
memory having stored thereon computer readable instructions that, when executed by the at least one processor, cause the audience measurement computing system to perform a set of operations comprising:
accessing audience attentiveness data obtained from a plurality of portable devices presenting media, wherein the audience attentiveness data from each portable device of the plurality of portable devices is based at least on a spatial condition change of the portable device detected by one or more sensors of the portable device;
determining, for the plurality of portable devices presenting the media, respective extents of audience attentiveness based on the audience attentiveness data;
combining the respective extents of audience attentiveness to generate a measure of user attentiveness associated with the media; and outputting the measure of user attentiveness associated with the media.
The parent claim does not explicitly disclose determining, by the computing device based on the spatial condition change, an attention level; and transmitting, by the computing device, the attention level to a remote computing system.
Momeyer discloses determining, by a computing device, that the computing device is presenting media (See [0009-0012] a mobile platform uses real time motion data to adjust the CPM or used with additional factors to generate an attention level which is then used to adjust the CPM. The system uses real-time motion of a mobile platform during the time than an advertisement is served.);
in response to the determining that the computing device is presenting media, collecting data from a sensor of the computing device while the computing device is presenting the media (See [0009-0010], [0025] sensor data indicating motion level of the mobile platform);
detecting, by the computing device based on the data, a spatial condition change of the computing device (See [0009-0010], [0025] sensor data indicating motion level of the mobile platform is indicative of change. Note the motion detected is read on a spatial condition change as motion is defined as an act, process, or instance of changing place.);
determining, by the computing device based on the spatial condition change, an attention level (See [0010] determining a high level of motion of the mobile platform; See [0025], motion is indicative of spatial condition change); and
transmitting, by the computing device, the attention level to a remote computing system (See [0022] the mobile platform may provide the sensor data to the server and the server may then determine the attention level).
Prior to the invention being made it would have been obvious to one ordinary skill in the art to modify the known system of the parent claim with the known methods of Momeyer predictably resulting in computing device based on the spatial condition change, an attention level; and transmitting, by the computing device, the attention level to a remote computing system by applying the court recognized rational of applying a known technique to a known device (method, or product) ready for improvement to yield predictable results. The modification would have the benefit of allowing a server to make adjustments to advertisement CPM as suggested by Momeyer.
Claim 1, 9, and 15 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1, 7, and 14 of U.S. Patent No. 11,792,477. Although the claims at issue are not identical, they are not patentably distinct from each other because the features of the parent claims anticipate the features of the current claims. Claims 9, and 17, and claims 7 and 14 of the Parent are analyzed with using the same analysis below.
Application 18/985,772
1. A method comprising:
determining, by a computing device, that the computing device is presenting media;
in response to the determining that the computing device is presenting media, collecting data from a sensor of the computing device while the computing device is presenting the media;
detecting, by the computing device based on the data, a spatial condition change of the computing device;
determining, by the computing device based on the spatial condition change, an attention level; and
transmitting, by the computing device, the attention level to a remote computing system.
U.S. Patent No. 11,792,477
1. (Currently Amended) A portable device comprising:
at least one processor;
and
having stored therein processor circuitry to execute the computer readable instructions that, when executed by the at least one processor, cause the portable device to at least:
download an exposure measurement application from a first server via a network;
and execute the exposure measurement application to:
detect at least one of a first orientation change of the portable device or a first position change between the portable device and a user;
compare the at least one of the first orientation change or the first position change to a plurality of spatial condition change combinations associated with respective likelihoods indicative of user attentiveness related to the portable device to determine user attentiveness data associated with a presentation on the portable device, the plurality of spatial condition change combinations including a plurality of orientation changes from respective starting orientations to respective ending orientations and a plurality of position changes from respective starting positions to respective ending positions; and
cause the user attentiveness data to be transmitted via the network to at least one of the first server or a second server.
Claim 1, 9, and 15 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1, 7, and 14 of U.S. Patent No. 10,986,405. Although the claims at issue are not identical, they are not patentably distinct from each other because the features of the parent claims anticipate the features of the current claims. Claims 9, and 17, and claims 7 and 14 of the Parent are analyzed using the same analysis below.
Application 18/985,772
1. A method comprising:
determining, by a computing device, that the computing device is presenting media;
in response to the determining that the computing device is presenting media, collecting data from a sensor of the computing device while the computing device is presenting the media;
detecting, by the computing device based on the data, a spatial condition change of the computing device;
determining, by the computing device based on the spatial condition change, an attention level; and
transmitting, by the computing device, the attention level to a remote computing system.
U.S. Patent No. 10,986,405
1. A system comprising:
a data collection facility to distribute an exposure measurement application to a plurality of handheld computing devices via a network; and
a first handheld computing device of the plurality of the handheld computing devices, the first handheld computing device to execute the exposure measurement application to:
detect at least one of a first orientation change of the first handheld computing device or a first position change between the first handheld computing device and a user;
and compare the at least one of the first orientation change or the first position change to a plurality of spatial condition change combinations associated with respective likelihoods indicative of user attentiveness related to the first handheld computing device to determine user attentiveness data associated with a presentation on the first handheld computing device, the plurality of spatial condition change combinations including a plurality of orientation changes from respective starting orientations to respective ending orientations and a plurality of position changes from respective starting positions to respective ending positions; and
transmit the user attentiveness data to the data collection facility via the network.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
Claim(s) 1-2, 5-6, 9-10, 13-14 and 17-18 is/are rejected under pre-AIA 35 U.S.C. 102(a) as being anticipated by Momeyer et al. (US 2012/0158520 A1).
Regarding claim 1, 9 and 17, Momeyer discloses a method, a sensor and display, and a non-transitory computer-readable medium (See Fig 1, Fig 4, and Fig 5) comprising:
determining, by a computing device, that the computing device is presenting media (See [0009-0012] a mobile platform uses real time motion data to adjust the CPM or used with additional factors to generate an attention level which is then used to adjust the CPM. The system uses real-time motion of a mobile platform during the time than an advertisement is served.);
in response to the determining that the computing device is presenting media, collecting data from a sensor of the computing device while the computing device is presenting the media (See [0009-0010], [0025] sensor data indicating motion level of the mobile platform);
detecting, by the computing device based on the data, a spatial condition change of the computing device (See [0009-0010], [0025] sensor data indicating motion level of the mobile platform is indicative of change. Note the motion detected is read on a spatial condition change as motion is defined as an act, process, or instance of changing place.);
determining, by the computing device based on the spatial condition change, an attention level (See [0010] determining a high level of motion of the mobile platform; See [0025], motion is indicative of spatial condition change); and
transmitting, by the computing device, the attention level to a remote computing system (See [0022] the mobile platform may provide the sensor data to the server and the server may then determine the attention level).
Regarding claim 2, 10, and 18, Momeyer further discloses the method of claim 1, wherein the attention level is indicative of a user of the computing device beginning to disengage from the media during the presenting of the media (See [0010] the motion level is indicative of attention level with a higher motion level suggesting the user is less likely to pay attention).
Regarding claim 5 and 13, Momeyer further discloses the method of claim 2, wherein the attention level is indicative of a confidence that the user of the computing device is beginning to disengage from the media (See [0010] a high motion is indicative of a user being less likely to pay attention).
Regarding claim 6 and 14, Momeyer further discloses the method of claim 1, further comprising: collecting media identifying information associated with the media; and transmitting the media identifying information to the remote computing system (See [0023] the mobile platform provides the server with a descriptor of the advertisement displayed as well as wither the attention level or the CPM based on the attention level. Whether the mobile platform or the server determines the attention level may vary.).
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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.
Claim 3, 11, and 19 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Momeyer et al. (US 2012/0158520 A1) in view of Morris (US 2012/0206268 A1).
Regarding claim 3, 11 and 19, Momeyer discloses the method of claim 2, but does not explicitly disclose wherein the attention level is indicative of the user of the computing device putting the computing device down.
Morris discloses that it was known to detect when a portable electronic device has been put down (See [0073]).
Prior to the invention being made it would have been obvious to one of ordinary skill in the art to modify the known system of Momeyer with the known methods of Morris predictably resulting in the attention level is indicative of the user of the computing device putting the computing device down by applying the court recognized rational of applying a known technique to a known device (method, or product) ready for improvement to yield predictable results. The modification would have the benefit of detecting when a portable device is put down when determining an attention of a user as suggested by Morris.
Claim 4, 12 and 20 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Momeyer et al. (US 2012/0158520 A1) in view of Perez et al. (US 2012/0124456 A1).
Regarding claim 4, 12, and 20, Momeyer discloses the method of claim 2, but does not explicitly disclose wherein the attention level is indicative of the user of the computing device turning the computing device away from view.
Perez discloses that it was known to determine user attentiveness and determining when a users head was turned away from a device presenting content (See [0052]).
Prior to the invention being made it would have been obvious to one ordinary skill in the art to modify the known system of Momeyer where motion of a mobile platform is detected with the known methods of Perez predictably resulting in modifying Momeyer to determine that the motion of a portable platform causes a users head to be turned away. The combination further resulting in attention level being indicative of the user of the computing device turning the computing device away from view by applying the court recognized rational of applying a known technique to a known device (method, or product) ready for improvement to yield predictable results. The modification would have the benefit of further refining user attentiveness information as suggested by Perez.
Claim 7 and 15 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Momeyer et al. (US 2012/0158520 A1) in view of Nagaya et al. (US 2010/0295839 A1).
Regarding claim 7 and 15, Momeyer discloses the method of claim 1, but does not explicitly disclose wherein detecting the spatial condition change comprises detecting a change in a proximity to a user of the computing device.
Nagaya discloses that it was known to detect a users distance to a display in order to determine attentiveness (See [0041-0042]).
Prior to the invention being made it would have been obvious to one ordinary skill in the art to modify the known system of Momeyer with the known methods of Nagaya predictably resulting in detecting the spatial condition change comprises detecting a change in a proximity to a user of the computing device by applying the court recognized rational of applying a known technique to a known device (method, or product) ready for improvement to yield predictable results. The modification would have the benefit of determining a user is within a threshold distance to be attentive as suggested by Nagaya.
Claim 8 and 16 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Momeyer et al. (US 2012/0158520 A1) in view of Hamynen et al. (US 2010/0161658 A1).
Regarding claim 8 and 16, Momeyer discloses the method of claim 1, but does not disclose wherein detecting the spatial condition change comprises detecting a change in angular orientation of the computing device.
Hamynen discloses that it was known to detect an orientation of a mobile device and determining one or more rotation angles of the device relative to the earth’s surface (See [0007] [0043]).
Prior to the invention being made it would have been obvious to one ordinary skill in the art to modify the known system of Momeyer with the known methods of Hamynen predictably resulting in detecting the spatial condition change comprises detecting a change in angular orientation of the computing device by applying the court recognized rational of applying a known technique to a known device (method, or product) ready for improvement to yield predictable results. The modification would have the benefit of being able to an angular position of a computing device as suggested by Hamynen.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FERNANDO ALCON whose telephone number is (571)270-5668. The examiner can normally be reached Monday-Friday, 9:00am-7:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Pendleton can be reached at (571)272-7527. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
FERNANDO . ALCON
Examiner
Art Unit 2425
/FERNANDO ALCON/Primary Examiner, Art Unit 2425