DETAILED ACTIONNotice 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 .
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.
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Claims 1-2, 4-6, 8-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 11-14 of U.S. Patent No. 11,632,587 in view of Filev et al. (US Pat. 9,219,790), herein referenced as Filev.
Instant Application Claim 1
US Pat. 11,632,587 Claims 1 and 2
A method comprising: receiving a control signal instructing a mobile device to gather user attention data, wherein the control signal is generated based on a detection of a presentation of media on a media device that is separate from the mobile device;
An apparatus comprising: a mobile meter to: receive, from an external device, a signal to gather user attention data when a presentation of media is detected on a media device within proximity of the mobile meter, wherein the user attention data is to be associated with media presented by the external device; (Claim 1)
detecting, using a camera of the mobile device, the user attention data; and
wherein the attention determiner is to activate a camera on a mobile device and determine if a face is detected by the camera during the time period and based on an orientation of the face. (Claim 2)
transmitting …the user attention data, wherein the user attention data is indicative of whether a user of the mobile device viewed the presentation of the media on the media device.
wherein the user attention data is to be associated with media presented by the external device; and transmit the user attention data; (Claim 1)
The claim in the instant application recites the additional limitation of transmitting, to a server, the user attention data.
Nevertheless, Filev discloses transmitting, to a server, the user attention data (Col. 5 lines 6-30, Col. 7 lines 34-66, Fig. 1, i.e., the server system receives mobile device usage information. The mobile device usage information includes a log of actions performed by the user on the second device. Each action recorded in the log can be classified as a positive indicator of engagement, a negative indicator of engagement, or a neutral indicator of engagement. For example, a mobile game is almost always a negative indicator because it requires the focus of the user and is unlikely to be related to media content being presented. An Internet search may be a positive indicator of engagement if the topic searched is related to the presented media content). It would have been obvious to include transmitting, to a server, the user attention data in claim 1 of patent 11,632,587 for the benefit of measuring the impact of specific media content are the second screen devices that are commonly used by consumers of media content and gathering information concerning what media content a user finds engaging and what media content a user does not find interesting is important to providing a good user experience (Col. 1 lines 34-55).
Claim 2 of the instant application corresponds to patented claim 1.
Claim 4 of the instant application corresponds to patented claim 3.
Claim 5 of the instant application corresponds to patented claim 4.
Claim 6 of the instant application corresponds to patented claim 1.
Claim 8 of the instant application corresponds to patented claim 1, 2.
Claim 9 of the instant application corresponds to patented claim 3.
Claim 10 of the instant application corresponds to patented claim 1.
Claim 11 of the instant application corresponds to patented claim 2.
Claim 12 of the instant application corresponds to patented claim 1.
Claim 13 of the instant application corresponds to patented claim 3.
Claim 14 of the instant application corresponds to patented claim 3.
Claim 15 of the instant application corresponds to patented claim 11, 12.
Claim 16 of the instant application corresponds to patented claim 11.
Claim 17 of the instant application corresponds to patented claim 13.
Claim 18 of the instant application corresponds to patented claim 14.
Claims 1-2, 4-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4, 6-7, 9, 13, 15-17, 19 of U.S. Patent No. 11,997,351 in view of Filev et al. (US Pat. 9,219,790), herein referenced as Filev.
Instant Application Claim 1
US Pat. 11,997,351 Claims 1 and 4
A method comprising: receiving a control signal instructing a mobile device to gather user attention data, wherein the control signal is generated based on a detection of a presentation of media on a media device that is separate from the mobile device;
A method comprising: receiving a signal to gather user attention data when a presentation of media is detected on a media device within proximity of a mobile device, wherein the user attention data is to be associated with media output by the media device; (Claim 1)
detecting, using a camera of the mobile device, the user attention data; and
based on the signal, activating a camera of the mobile device, wherein generating the user attention data comprises generating the user attention data based on camera data captured by the camera (Claim 4)
transmitting …the user attention data, wherein the user attention data is indicative of whether a user of the mobile device viewed the presentation of the media on the media device.
generating, by executing instructions with the processor, the user attention data during the time period; and transmitting the user attention data. (Claim 1)
The claim in the instant application recites the additional limitation of transmitting, to a server, the user attention data.
Nevertheless, Filev discloses transmitting, to a server, the user attention data (Col. 5 lines 6-30, Col. 7 lines 34-66, Fig. 1, i.e., the server system receives mobile device usage information. The mobile device usage information includes a log of actions performed by the user on the second device. Each action recorded in the log can be classified as a positive indicator of engagement, a negative indicator of engagement, or a neutral indicator of engagement. For example, a mobile game is almost always a negative indicator because it requires the focus of the user and is unlikely to be related to media content being presented. An Internet search may be a positive indicator of engagement if the topic searched is related to the presented media content). It would have been obvious to include transmitting, to a server, the user attention data in claim 1 of patent 11,997,351 for the benefit of measuring the impact of specific media content are the second screen devices that are commonly used by consumers of media content and gathering information concerning what media content a user finds engaging and what media content a user does not find interesting is important to providing a good user experience (Col. 1 lines 34-55).
Claim 2 of the instant application corresponds to patented claim 1.
Claim 4 of the instant application corresponds to patented claim 7.
Claim 5 of the instant application corresponds to patented claim 6.
Claim 6 of the instant application corresponds to patented claim 1.
Claim 7 of the instant application corresponds to patented claim 9.
Claim 8 of the instant application corresponds to patented claim 1, 4.
Claim 9 of the instant application corresponds to patented claim 7.
Claim 10 of the instant application corresponds to patented claim 1.
Claim 11 of the instant application corresponds to patented claim 4.
Claim 12 of the instant application corresponds to patented claim 2.
Claim 13 of the instant application corresponds to patented claim 4.
Claim 14 of the instant application corresponds to patented claim 9.
Claim 15 of the instant application corresponds to patented claim 13, 15.
Claim 16 of the instant application corresponds to patented claim 13.
Claim 17 of the instant application corresponds to patented claim 16.
Claim 18 of the instant application corresponds to patented claim 17.
Claim 19 of the instant application corresponds to patented claim 19.
Claims 1-3, 8-10, 15-16, 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 6, 8, 13, 15-16, 19 of U.S. Patent No. 12,425,689 in view of Hao et al. (2019/0174186) and Filev et al. (US Pat. 9,219,790) herein referenced as Hao and Filev, respectively.
Instant Application Claim 1
US Pat. 12,425,689 Claims 1 and 6
A method comprising: receiving a control signal instructing a mobile device to gather user attention data, wherein the control signal is generated based on a detection of a presentation of media on a media device that is separate from the mobile device;
A method comprising: …transmitting, based on an identification of the start of the media event of interest, a control start signal from the set meter to a mobile meter on a mobile device, wherein reception of the control start signal by the mobile meter causes the mobile meter to initiate gathering of user attention data. (Claim 1)
…the user attention data, wherein the user attention data is indicative of whether a user of the mobile device viewed the presentation of the media on the media device.
wherein the user attention data is indicative of whether a user is viewing the mobile device; (Claim 6)
The claim in the instant application recites the additional limitations of detecting, using a camera of the mobile device, the user attention data; and transmitting, to a server, the user attention data.
Hao discloses detecting, using a camera of the mobile device, the user attention data ([0017]-[0019], Fig. 1, i.e., user device 110 includes a display screen 112 and a camera 115. As shown schematically in FIG. 1, the user's line of sight 102 is generally directed at the display screen 112 while the user is attentively viewing the video presentation. Accordingly, the user's eyes are within the field of view of the camera 115. Processor 118 executes a detection algorithm using the image 201 as input. In this embodiment, the algorithm can detect whether the user's eyes are in the image; if so, the algorithm determines that the user is paying attention to the presentation at the display 112). It would have been obvious to include detecting, using a camera of the mobile device, the user attention data in claim 1 of patent 12,425,689 for the benefit of accurately measuring user attentiveness in a mobile device.
Additionally, Filev discloses transmitting, to a server, the user attention data (Col. 5 lines 6-30, Col. 7 lines 34-66, Fig. 1, i.e., the server system receives mobile device usage information. The mobile device usage information includes a log of actions performed by the user on the second device. Each action recorded in the log can be classified as a positive indicator of engagement, a negative indicator of engagement, or a neutral indicator of engagement. For example, a mobile game is almost always a negative indicator because it requires the focus of the user and is unlikely to be related to media content being presented. An Internet search may be a positive indicator of engagement if the topic searched is related to the presented media content). It would have been obvious to include transmitting, to a server, the user attention data in claim 1 of patent 12,425,689 for the benefit of measuring the impact of specific media content are the second screen devices that are commonly used by consumers of media content and gathering information concerning what media content a user finds engaging and what media content a user does not find interesting is important to providing a good user experience (Col. 1 lines 34-55).
Claim 2 of the instant application corresponds to patented claim 6.
Claim 3 of the instant application corresponds to patented claim 2.
Claim 8 of the instant application corresponds to patented claim 8, 13.
Claim 9 of the instant application corresponds to patented claim 13.
Claim 10 of the instant application corresponds to patented claim 13.
Claim 15 of the instant application corresponds to patented claim 15, 19.
Claim 16 of the instant application corresponds to patented claim 19.
Claim 20 of the instant application corresponds to patented claim 16.
Conclusion
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/ALEXANDER Q HUERTA/Primary Examiner, Art Unit 2425 August 27, 2026
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