DETAILED ACTION
This action is in response to communications filed 2/24/2025:
Claims 1-23 are pending
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.
Claims 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. 12237069. Although the claims at issue are not identical, they are not patentably distinct from each other. For example:
Regarding claim 1, 12237069 teaches a method of selecting audio tracks for playback to a human subject, the method including analysing audio tracks for playback to the human subject according to a preselected desired arousal state or brain activity of the human subject, the method comprising the steps of (claim 1, a method of therapy on a human subject, the method including analysing audio tracks for playback to the human subject according to a preselected desired arousal state or brain activity of the human subject, the method comprising the steps of):
(i) accessing a set of stored individual audio tracks operable for selection for playback (claim 1, accessing a set of stored individual audio tracks operable for selection for playback);
(ii) predicting a neuro-physiological response to the individual audio tracks according to a neuro-physiological model of the functioning and response of one or more of the human lower cortical, limbic and subcortical regions in the brain to sounds (claim 1, predicting a neuro-physiological response to the individual audio tracks according to a neuro-physiological model of the functioning and response of the human lower cortical, limbic and subcortical regions in the brain to sounds);
(iii) receiving the selected desired arousal state or brain activity of the human subject, defined by measured electroencephalogram (EEG) or other biometric data (claim 1, receiving the selected desired arousal state or brain activity of the human subject, defined by measured electroencephalogram (EEG) or other biometric data);
(iv) selecting audio tracks according to the predicted neuro-physiological response to the individual music tracks, and according to the selected desired arousal state or brain activity of the human subject (claim 1, selecting audio tracks according to the predicted neuro-physiological response to the individual music tracks, and according to the selected desired arousal state or brain activity of the human subject).
The remaining independent and/or dependent claims can similarly be rejected using one or more claims of the patent, whether alone or in combination.
Claims 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11342062. Although the claims at issue are not identical, they are not patentably distinct from each other. See above as an example.
Claims 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-36 of U.S. Patent No. 10587967. Although the claims at issue are not identical, they are not patentably distinct from each other. See above as an example.
Claims 1-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-35 of U.S. Patent No. 9736603. Although the claims at issue are not identical, they are not patentably distinct from each other. See above as an example.
Claims 1-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. 19539919 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other. See above as an example.
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.
Claims 1-5, 7-14, and 16-23 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Rowe et al (US20120233164, hereinafter “Rowe”) in view of Aarts et al (US20080235284, hereinafter “Aarts”).
Regarding claim 1, Rowe teaches a method of selecting audio tracks for playback to a human subject, the method including analysing audio tracks for playback to the human subject according to a preselected desired arousal state or brain activity of the human subject (abstract, audio tracks are classified to elicit certain emotions/arousal state of a user), the method comprising the steps of:
(i) accessing a set of stored individual audio tracks operable for selection for playback (¶14, 44-45, Fig. 5, playlists comprising audio tracks are stored that can be for playback to a user);
(ii) predicting a neuro-physiological response to the individual audio tracks according to a neuro-physiological model of the functioning and response of one or more of the human lower cortical, limbic and subcortical regions in the brain to sounds (¶14, abstract, playlist consists of songs that are predicted to elicit certain emotions from the listener);
(iii) receiving the selected desired arousal state or brain activity of the human subject (abstract, ¶1, playlist is presented to listener);
(iv) selecting audio tracks according to the predicted neuro-physiological response to the individual music tracks, and according to the selected desired arousal state or brain activity of the human subject (abstract, ¶1, 14, playlist comprising audio tracks are selected to elicit certain emotions of the listener).
Rowe fails to explicitly teach defined by measured electroencephalogram (EEG) or other biometric data.
Aarts teaches defined by measured electroencephalogram (EEG) or other biometric data (abstract, Fig. 1, analyzing a user’s physiological data as it relates to the user’s emotional data and storing said data).
At the time the invention was made, it would have been obvious to one of ordinary skill in the
art to combine the method and system of classifying music based on its effects on a listener (as taught
by Rowe) with the sensor system (as taught by Aarts). The rationale to do so is to combine prior art elements according to known methods to yield the predictable result of obtaining a user's physiological data instantly through well-known and proven methods (Aarts, ¶19).
Regarding claim 2, Rowe in view of Aarts teaches including the step of (v) playing the selected audio tracks to the human subject (Rowe, ¶12, audio tracks are played to the listener).
Regarding claim 3, Rowe in view of Aarts teaches wherein in step (iv) a sequence of audio tracks is selected (Rowe, abstract, playlist is defined as a sequence of audio tracks).
Regarding claim 4, Rowe in view of Aarts teaches including the step of (v) playing the selected sequence of audio tracks (abstract, playing the songs in the playlist to elicit certain emotions).
Regarding claim 5, Rowe in view of Aarts teaches wherein the measured electroencephalogram (EEG) or other biometric data determines the brain activity or a neuro-physiological arousal of the human subject (Aarts, Fig. 1, obtaining physiological data of the user).
Regarding claim 7, Rowe in view of Aarts teaches the method including measuring the human subject's initial brainwave activity or level of neurophysiological arousal, defined by measured electroencephalogram (EEG) or other biometric data (Aarts, Fig. 1, continual monitoring of a user’s physiological data) and then automatically constructing a playlist that will first mirror this initial level of arousal or brain activity, then direct the human subject towards, and help to maintain them at, the preselected desired brain activity or arousal state of the human subject, or entrain brainwave activity at the preselected desired brain activity or arousal state of the human subject (Rowe, ¶55, based on a user’s selection of a desired emotion, a playlist is generated for playback to elicit said emotion).
Regarding claim 8, Rowe in view of Aarts teaches wherein the method is computer-implemented (Rowe, ¶1, method and system being performed by a computing device).
Regarding claim 9, Rowe in view of Aarts teaches wherein a user interface is presented to a user, the method further comprising the steps of:
(i) receiving a user selection choice from a menu of activities in the user interface;
(ii) establishing a target brain activity or level of arousal and affect that will facilitate the chosen activity (Rowe, Fig. 1, ¶38, UI is given to the user for interaction – i.e. selecting new audio tracks based on “emotional wheel” and audio is output based on the “emotional wheel” in order to elicit said desired emotion).
Regarding claim 10, Rowe in view of Aarts teaches further comprising the step of an automated categorization process classifying music tracks and indexing them according to values expressed in a Musical Effect Matrix M (Rowe, Figs. 7-8, ¶57, matrix can be generated with emotional associations and similarities).
Regarding claim 11, Rowe in view of Aarts teaches further comprising the step of analysing tracks for their universal musical values of rhythmicity, linear harmonic cost and inharmonicity, as well as valence (Rowe, ¶2, ¶41, audio tracks are analyzed for various musical parameters such as dynamics
(degree of loudness), tempo, meter (pattern of fixed, temporal units that overlay, or 'group' the steady
beats), rhythmicity (ever-shifting combinations of impulses of varying length), melodic contour, harmony, timbre (tone color), instrumentation, and valence).
Regarding claim 12, Rowe in view of Aarts teaches further comprising the step of analysing tracks for their universal musical values of turbulence (Rowe, ¶2, musical parameters such as dynamics (degree of loudness), tempo, meter (pattern of fixed, temporal units that overlay, or 'group' the steady
beats), rhythmicity (ever-shifting combinations of impulses of varying length) are analyzed).
Regarding claim 13, Rowe in view of Aarts teaches wherein values of rhythmicity, linear harmonic cost, inharmonicity and turbulence, as well as valence, are automatically determined using signal processing techniques (Rowe, Fig. 1, audio processing is used to analyze the audio tracks).
Regarding claim 14, Rowe in view of Aarts teaches further comprising the step of combining values of rhythmicity, inharmonicity and turbulence as well as valence, to yield a measure of excitement or arousal or brain activity, and positive or negative emotion, mood and feeling (Rowe, Figs. 7-8, listener’s valence values are measured which include the listener’s arousal, positive/negative emotions, as well as listener’s mood).
Regarding claim 16, Rowe in view of Aarts teaches further comprising a method of ordering a series of pieces of music in a playlist by matching the musical effect of each piece with a temporal series of values described by a musical effect vector, derived from a predictive model of human lower cortical, limbic and subcortical neuro-physiological functioning and response, applied to that music (Rowe, abstract, ¶12, 35, playlist is generated to elicit and maintain a user's desired mood/emotion)..
Regarding claim 17, Rowe in view of Aarts teaches wherein the model of human neuro-physiological response to sound is refined through machine learning, such as linear regressive and/or neural network approaches (Rowe, ¶13, 30, audio tracks are analyzed and the system uses machine learning for classification for future playback to elicit certain emotions).
Regarding claim 18, Rowe in view of Aarts teaches the method including using a sensor (Aarts, ¶25, sensor for obtaining physiological data) such that once the sensor is activated, the human subject's initial level of neuro-physiological arousal or brain activity is measured using the sensor, and a playlist is automatically constructed that first mirrors this level of arousal or brain activity, then directs the human subject towards, and helps to maintain them at, the preselected desired arousal state or brain activity of the human subject (Rowe, ¶55, based on a user’s selection of a desired emotion, a playlist is generated for playback to elicit said emotion).
Regarding claim 19, Rowe in view of Aarts teaches the method including creating a playlist in order to entrain or maintain arousal or brain activity and direct state of mind and/or affect (Rowe, ¶55, playlist is generated to maintain desired emotion).
Regarding claim 20, Rowe in view of Aarts teaches including sharing arousal or brain activity values in a social networking application (Rowe, ¶34, system can collect data over the internet – it would be obvious to one of ordinary skill in the art to incorporate sharing playlist with others [for the purpose of eliciting a similar emotion in other listeners]; ¶33, various tags can be given to audio tracks which can make sharing with others much easier).
Regarding claim 21, it is rejected similarly as claim 1. The computer program product can be found in Aarts (¶53, program stored on a program product).
Regarding claim 22, it is rejected similarly as claim 1. The computing device can be found in Rowe (¶1, system).
Regarding claim 23, Rowe in view of Aarts teaches wherein the computing device is a smartphone or a tablet computer (Aarts, Fig. 1, computer).
Claim 6 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Rowe et al (US20120233164, hereinafter “Rowe”) in view of Aarts et al (US20080235284, hereinafter “Aarts”) in further view of Knispel et al (US4883067, hereinafter “Knispel”).
Regarding claim 6, Rowe in view of Aarts fail to explicitly teach wherein the electroencephalogram (EEG) biometric data is measured using an electroencephalogram (EEG) cap.
Knispel teaches wherein the electroencephalogram (EEG) biometric data is measured using an electroencephalogram (EEG) cap (Fig. 1, abstract, figure shows a user wearing an EEG cap in order to obtain the user’s EEG response when a musical signal is played for the user).
At the time the invention was made, it would have been obvious to one of ordinary skill in the
art to substitute the method of obtaining a physiological response from a user (as taught by Rowe in view of Aarts) for the EEG cap (as taught by Knispel). The rationale to do so is to substitute one well known method of obtaining a user's physiological data for another to yield the predictable result of
using an EEG cap to measure and obtain a user's physiological data in order to determine a user's
response to music signals (Knispel, abstract)
Allowable Subject Matter
Claim 15 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Refer to PTO-892, Notice of References Cited for a listing of analogous art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QIN ZHU whose telephone number is (571)270-1304. The examiner can normally be reached Monday-Thursday 6AM-4PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duc Nguyen can be reached on 571-272-7503. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/QIN ZHU/Primary Examiner, Art Unit 2691
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