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 .
Introductory Remarks
This action is in response to communications filed on 20 June 2025. Claim(s) 1-20 is/are presently pending in the application, of which, claim(s) 1, 8, and 15 is/are presented in independent form.
This application properly claims benefit, as a continuation, of U.S. Application Nos. 17/872,781, 16/893,329, 14/982,293, and 62/099,398 filed on 25 July 2022, 4 June 2020, 29 December 2015, and 2 January 2015, respectively.
No IDS has been received.
Examiner’s Note
The rejections below group claims that may not be identical, but whose language and scope are so substantively similar as to lend themselves to grouping, in the interests of clarity and conciseness. Any citation to the instant specification herein is made to the PGPub version (if applicable). The examiner notes that no statement has been entered regarding the inventorship of individual claims as required under 37 CFR 1.56, and therefore assumes that all claims have the same inventorship or are directed to inventions that were commonly owned as of the effective filing date of the invention.
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, 5-8, 12-15, 19, and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-8, 12-15, 19, and 20 of U.S. Patent No. 12,367,235. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are merely the genus of the already patented species.
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-4, 6-11, 13-18, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ellis et al. (U.S. PGPub No. 2009/0023406 A1) (hereinafter Ellis) in view of Kusunoki et al. (U.S. PGPub No. 2010/0071005 A1) (hereinafter Kusunoki).
As per claim 1, Ellis teaches a computer-implemented method (0002) comprising:
detecting a change from a first media content to a second media content being broadcast on a broadcast station (0194, 0197-98, and 0201-02);
in response to detecting the change from the first media content to the second media content, comparing [a user profile with a content station profile] to determine whether the user profile satisfies a threshold difference from the content station profile (0198);
in response to the threshold difference being satisfied, generating a station recommendation for a user associated with the user profile (0198); and
transmit an instruction to a device associated with the user, the instruction comprising the station recommendation, the instruction configured to cause a radio pre-set to be adjusted (0198 and 0228).
But Ellis does not appear to disclose:
in response to detecting the change from the first media content to the second media content, comparing a histogram of a user profile with a histogram of a content station profile for the broadcast station to determine whether the user profile satisfies a threshold difference from the content station profile. (Emphasis added).
Kusunoki does teach this. Kusunoki at 0096; see also Kusunoki at 0075, 0080-83, 0100, and 0151-56. It would have been obvious to one of ordinary skill in the art to incorporate the teachings of Kusunoki into the invention of Ellis in order to compare a histogram of a user profile with a histogram of a content station profile for the broadcast station to determine whether the user profile satisfies a threshold difference from the content station profile. This would have been clearly advantageous as it would improve user satisfaction by keeping in a similar tone to what the user has currently been enjoying. See generally Kusunoki at 0103. The combination hereinafter EK.
As per claim 8, EK teaches a tangible, non-transitory computer readable medium comprising instructions that, when executed, cause at least one processor to perform a set of operations comprising:
For the remaining limitations, see the examiner’s remarks regarding claim 1.
As per claim 15, EK teaches a computing device (Ellis at 0021) comprising:
at least one processor (Ellis at 0026); and
a tangible, non-transitory computer readable medium comprising instructions (Ellis at 0026) that, when executed, cause the at least one processor to perform a set of operations comprising:
For the remaining limitations, see the examiner’s remarks regarding claim 1.
As per claims 2, 9, and 16, EK teaches the method of claim 1, wherein the content station profile comprises a first characteristic of first broadcast data associated with a first time context and a first count associated with first identifying information (Ellis at 0396-97; see also Ellis at 0263).
As per claims 3, 10, and 17, EK teaches the method of claim 2, wherein the content station profile comprises a second characteristic of second broadcast data associated with a second time context and a second count associated with second identifying information (Ellis at 0396-97).
As per claims 4, 11, and 18, EK teaches the method of claim 3, wherein the first characteristic is at least one of a first genre, a first era, or a first mood of the first broadcast data, and wherein the second characteristic is at least one of a second genre, a second era, or a second mood of the second broadcast data (Ellis at 0464-68).
As per claims 6 and 13, EK teaches the method of claim 1, wherein the change from the first media content to the second media content comprises a change from a first song to a second song (Ellis at 0202).
As per claims 7, 14, and 20, EK teaches the method of claim 1, further comprising:
determining at least one of a time, season, or holiday associated with the change (Ellis at 0396-97); and
storing the at least one of the time, season, or holiday associated with the change in the content station profile (id.).
Claim(s) 5, 12, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ellis in view of Eronen as applied to claims 3, 10, and 17 above, and further in view of Matsunaga et al. (U.S. PGPub No. 2009/0286526 A1) (hereinafter Matsunaga).
As per claims 5, 12, and 19, EE does not appear to disclose the method of claim 3, wherein the first broadcast data and the second broadcast data are received at a server computer from a listening station.
Matsunaga does teach the use of a wireless terminal communicating radio information to a monitoring server. Matsunaga at Figure 3 and corresponding description (see e.g. 0050). It would have been obvious to one of ordinary skill in the art to incorporate the teachings of Matsunaga into the combination of EK in order to have the first broadcast data and the second broadcast data be received at a server computer from a listening station. This would have been clearly advantageous as it would allow the server to monitor radio transmissions for locations that it is remote from, thereby enabling recommendations for various geographic locations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYLER J TORGRIMSON whose telephone number is (571)270-5550. The examiner can normally be reached Monday - Friday 9 am - 5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Aleksander Kerzhner can be reached at 571.270.1760. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TYLER J TORGRIMSON/ Primary Examiner, Art Unit 2165
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