DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This office action is in response to applicant’s remarks filed June 15, 2026. Claims 1, 4, 6, and 10-19 are pending and stand rejected.
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.
Claim 1, 4, 6, 10-12 and 14-19 are rejected under 35 U.S.C. 103 as being unpatentable over US 20180160735 A1 (hereinafter BORKOVEC) in view of US 20170027232 A1 (hereinafter SCHECK), US 20130104916 A1 (hereinafter BELLINGER), and US 20140123990 A1 (hereinafter TIMMERMANS).
Regarding claim 1, BORKOVEC discloses an electronic smoking device with a power supply and an atomizer (abstract). BORKOVEC discloses a vaporizer (Fig. 3, atomizer 26, ¶30) for generating vapor for inhalation by a user of the electronic vapor provision system; an electrical power supply (Fig. 3, power supply 18, ¶28) for supplying power to the vaporizer; a user input unit (Fig. 3, push button 90, ¶41) for detecting manual user actuation. BORKOVEC further discloses a control unit (Fig. 3, control electronics 22, ¶30) configured to control, from an available power level range, a level of power supplied from the electrical power supply to the vaporizer in proportion an amount of the manual user actuation detected by the user input unit during vapor generation, such that an increase in the amount of the manual user actuation gives an increased level of power and a decrease in the amount the manual user actuation gives a decreased level of power and such that the level of power is delivered according to the level of manual user actuation at a time of actuation during an inhalation (¶41). BORKOVEC discloses that the when the pressing the push button may increase or decrease the amount of liquid supplied by increasing or decreasing the power. The push button is pressure sensitive such that the level of pressure is proportional to the energy provided to the electromagnet (¶41). Therefore, BORKOVEC discloses wherein the manual user actuation comprises touching, and the user input unit comprises a touch sensitive interface (¶41), because the activation is touch sensitive.
Regarding the recitation during an inhalation, BORKOVEC discloses that the during the inhalation the control system is activated and causing changes (¶48). Further the recitation of “during an inhalation” is considered a recitation of intended use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
BORKOVEC does not disclose a touch sensitive interface requiring only a contact touch by the user, wherein the level of power is selected from the available power level range according to a location of the manual user actuation on the touch sensitive interface.
SCHECK teaches a device to adjust the amount of active substance inhaled by a user with a controller (abstract). SCHECK teaches a touch area (Fig. 1, touch area 185). SCHECK teaches that the touch area can be operated by a finger movement making it possible to adjust the level of active substance to be evaporated (¶83). SCHECK teaches that the user can sweep the touch area (with a finger) toward the aspiration nozzle to increase the amount of nicotine or away to reduced; SCHECK teaches that sweeping left and right will adjust the heating power ratio (¶83-¶87). Sweeping is considered to be only a contact touch.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified BORKOVEC to provide a touch sensitive interface requiring only a contact touch by the user, wherein the level of power is selected from the available power level range according to a location of the manual user actuation on the touch sensitive interface as taught in SCHECK. A person of ordinary skill in the art would obviously provide a touch area because doing so would allow the user to modulate the amount of active substance delivered and power ratio (SCHECK ¶83-¶87).
Neither BORKOVEC nor SCHECK disclose the limitation, wherein the touch sensitive interface comprises an associated scale indicating power level or actuation level for each location, such that the level of power is selected from the available power level range according to a location of the manual user actuation on the associated visual scale.
BELLINGER teaches a control component for regulating the output of an electronic vaporizer (abstract). BELLINGER teaches that the vaporizer includes a display (¶20). BELLINGER teaches that the display can be a touchscreen (¶20). In another embodiment, BELLINGER teaches that the vaporizer has a trigger component (Fig. 2, trigger component 240, ¶30) that may be in the form of button, a dial, a touch screen, a proximity sensor, a voice detection, a motion sensor, a switch, a suction sensor, a pressure sensor, a flow sensor, a pressure switch, or a combination thereof (¶30). BELLINGER teaches that the trigger component activates the heating system (¶30). BELLINGER further teaches an embodiment where a user input can be selected to control a power output (¶45). BELLINGER teaches that the user input can be a button (press activated), a touch activated button, a touch screen, a proximity detector, a moisture sensor, a temperature sensor, a suction sensor, a pressure switch, a pressure sensor, a flow sensor, among others (¶45). BELLINGER teaches that the adjust component can be manually selected and changed by the user (¶46). BELLINGER teaches that the vaporizer includes a display that renders data and can both accept input and display output (¶20). BELLINGER teaches that the display can include visual methods of conveying information (¶47). BELLINGER teaches that the display can provide operating conditions information including power output and a power level (¶45, ¶47). BELLINGER teaches that the display can provide, “operating condition information to the user including current (e.g., current of heating element, current of power source, and the like), voltage (e.g., voltage of the heating element, voltage of the power source, and the like), resistance (e.g., resistance of the heating element, and the like), a power output (e.g., a selected power output, a defined or fixed power output, a power output of the power source, a power output to the heating element, and the like), or a combination thereof.” (¶47). This establishes visual display of the power to the user. BELLINGER further teaches that the display can provide data as well as receives an input (¶20).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified BORKOVEC to provide wherein the touch sensitive interface comprises an associated visual scale indicating power level or actuation level for each location, such that the level of power is selected from the available power level range according to a location of the manual user actuation on the associated visual scale as taught in BELLINGER. A person of ordinary skill in the art would immediately recognize the touchscreen of BELLINGER accepts touch input and displays a power level (¶20, ¶45, ¶47). Doing so allows the user to input and output power settings to a controller (¶43, ¶46). A person of ordinary skill in the art would obviously provide that the level of power is selected from the available power range according to a location of the manual user actuation on the associated visual scale. A person of ordinary skill in the art would recognize that the screen that provides visual data and is also used to receive an input related to power settings would enable the user to control the device (BELLINGER ¶20, ¶47).
Neither BORKOVEC, SCHECK, nor BELLINGER disclose the limitation “an available continuous power level range”.
TIMMERMANS teaches a real time variable voltage programmable electronic cigarette device with programable function that enables a user to set the voltage output and power output level applied to the atomizer when energized (abstract). TIMMERMANS teaches that the software allows a user to control the voltage and power ranges in which the cigarette will operate (Fig. 7, ¶83). TIMMERMANS specifically teaches that the range of power is from 0 to 25 W (¶20).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified BORKOVEC to provide an available continuous power level range as taught in TIMMERMANS. TIMMERMANS teaches that the power level has a range (Fig. 7, ¶20, ¶83). The range in TIMMERMANS is taught to be over a continuous power (TIMMERMANS ¶20). Therefore, it would have been obvious to one of ordinary skill in the art to have a continuous power range because doing so would control the level of power and user-directed functions to a profile to customize profiles for a user (TIMMERMANS ¶20, ¶85).
Regarding claim 4, modified BORKOVEC discloses the electronic vapor provision system according to claim 1. BORKOVEC does not disclose wherein the touch sensitive interface is formatted as a linear strip, a curved strip, a substantially flat ring, or a strip extending partly or substantially around a perimeter of the electronic vapor provision system.
BELLINGER teaches a control component for regulating the output of an electronic vaporizer (abstract). BELLINGER teaches that the vaporizer includes a display (¶20). BELLINGER teaches that the display can be a touchscreen (¶20). In another embodiment, BELLINGER teaches that the vaporizer has a trigger component (Fig. 2, trigger component 240, ¶30) that may be in the form of button, a dial, a touch screen, a proximity sensor, a voice detection, a motion sensor, a switch, a suction sensor, a pressure sensor, a flow sensor, a pressure switch, or a combination thereof (¶30). BELLINGER teaches that the trigger component activates the heating system (¶30). BELLINGER further teaches an embodiment where a user input can be selected to control a power output (¶45). BELLINGER teaches that the user input can be a button (press activated), a touch activated button, a touch screen, a proximity detector, a moisture sensor, a temperature sensor, a suction sensor, a pressure switch, a pressure sensor, a flow sensor, among others (¶45). BELLINGER teaches that the adjust component can be manually selected and changed by the user (¶46).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified BORKOVEC to provide wherein the touch sensitive interface is formatted as a linear strip, a curved strip, a substantially flat ring, or a strip extending partly or substantially around a perimeter of the electronic vapor provision system as taught in BELLINGER. A person of ordinary skill in the art would immediately recognize the touchscreen of BELLINGER to be a linear strip and provide one for controlling and adjusting components of the vaporizer (¶30, ¶45-¶46). Doing so would allow the user to manually adjust the settings related to the vaporizer (¶46).
Regarding claim 6, modified BORKOVEC discloses the electronic vapor provision system according to claim 1. BORKOVEC further discloses wherein the user input unit is configured to: detect a first instance of an amount of pressure applied by the user during manual user actuation at a first location on the touch sensitive interface to cause supply of power at a first level of power; and subsequently detect a deviation of the amount of pressure applied by the manual user actuation from the first location to cause supply of power at a level proportional to a displacement of a location of the latter manual user actuation from the first location (¶41). BORKOVEC discloses that the push button may be an on-off (¶41). BORKOVEC further discloses that the amount of pressure applied on the button will increase the power (¶41).
Regarding claim 10, modified BORKOVEC discloses the electronic vapor provision system according to claim 1 as discussed above. BORKOVEC does not disclose the level of power is supplied in proportion to the amount of pressure applied by the user during manual user actuation according to a monotonically increasing function.
TIMMERMANS teaches a real time variable voltage programmable electronic cigarette device with programable function that enables a user to set the voltage output and power output level applied to the atomizer when energized (abstract). TIMMERMANS teaches that the user can modulate the voltage of power when the joystick is pushed center, left, or right (¶28). TIMMERMANS further teaches that the controller may be, “microcontroller, proportional-integral-derivative controller or any other suitable controller having the capability to produce and reproduce arbitrary waveforms 168, including but not limited to fuzzy logic, sliding controller, and state feedback.” (¶58).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified BORKOVEC to provide that the level of power is supplied in proportion to the amount of pressure applied by the user during manual user actuation according to a monotonically increasing function as taught in TIMMERMANS. BORKOVEC discloses that the power is controlled by a pressure sensitive push button such that the level of pressure is proportional to the energy provided to the electromagnet ( BORKOVEC, ¶41). The proportionality must be expressed by some function. TIMMERMANS teaches functions that can be used for controlling power (TIMMERMANS, ¶53). It would have been obvious to one of ordinary skill in the art to apply the function types taught in TIMMERMANS because doing so would control the level of power and user-directed functions to a profile to customize profiles for a user (TIMMERMANS ¶85).
Regarding claim 11, modified BORKOVEC discloses the electronic vapor provision system according to claim 10 as discussed above. BORKOVEC does not disclose the monotonically increasing function comprises one of a linear function, a quadratic function, a polynomial function, a logarithmic function, or an exponential function.
TIMMERMANS teaches a real time variable voltage programmable electronic cigarette device with programable function that enables a user to set the voltage output and power output level applied to the atomizer when energized (abstract). TIMMERMANS teaches that the user can modulate the voltage of power when the joystick is pushed center, left, or right (¶28). TIMMERMANS further teaches that the controller may be, “microcontroller, proportional-integral-derivative controller or any other suitable controller having the capability to produce and reproduce arbitrary waveforms 168, including but not limited to fuzzy logic, sliding controller, and state feedback.” (¶58). These functions disclose at least a linear function.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified BORKOVEC to provide that the monotonically increasing function comprises one of a linear function, a quadratic function, a polynomial function, a logarithmic function, or an exponential function as taught in TIMMERMANS. BORKOVEC discloses that the power is controlled by a pressure sensitive push button such that the level of pressure is proportional to the energy provided to the electromagnet ( BORKOVEC, ¶41). The proportionality must be expressed by some function. TIMMERMANS teaches functions that can be used for controlling power (TIMMERMANS, ¶53). It would have been obvious to one of ordinary skill in the art to apply the function types taught in TIMMERMANS because doing so would control the level of power and user-directed functions to a profile to customize profiles for a user (TIMMERMANS ¶85).
Regarding claim 12, modified BORKOVEC discloses the electronic vapor provision system according to claim 1 as discussed above. BORKOVEC does not disclose the available power level range has a minimum value and a maximum value which are adjustable by the user.
TIMMERMANS teaches a real time variable voltage programmable electronic cigarette device with programable function that enables a user to set the voltage output and power output level applied to the atomizer when energized (abstract). TIMMERMANS teaches that the software allows a user to control the voltage and power ranges in which the cigarette will operate (Fig. 7, ¶83). TIMMERMANS specifically teaches that the range of power is from 0 to 25 W (¶20).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified BORKOVEC to provide that the available power level range has a minimum value and a maximum value which are adjustable by the user as taught in TIMMERMANS. TIMMERMANS teaches that the power level has a range (Fig. 7, ¶20, ¶83). A power having a range inherently means there is a maximum and a minimum. Therefore, it would have been obvious to one of ordinary skill in the art to have a maximum and minimum power range because doing so would control the level of power and user-directed functions to a profile to customize profiles for a user (TIMMERMANS ¶20, ¶85).
Regarding claim 14, modified BORKOVEC discloses the electronic vapor provision system according to claim 1 as discussed above. BORKOVEC does not disclose the available power level range comprises a continuous range from within which any level can be supplied in response to a corresponding manual user actuation.
TIMMERMANS teaches a real time variable voltage programmable electronic cigarette device with programable function that enables a user to set the voltage output and power output level applied to the atomizer when energized (abstract). TIMMERMANS teaches that the software allows a user to control the voltage and power ranges in which the cigarette will operate (Fig. 7, ¶83). TIMMERMANS specifically teaches that the range of power is from 0 to 25 W (¶20).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified BORKOVEC to provide that the available power level range comprises a continuous range from within which any level can be supplied in response to a corresponding manual user actuation as taught in TIMMERMANS. TIMMERMANS teaches that the power level has a range (Fig. 7, ¶20, ¶83). The range in TIMMERMANS is taught to be over a continuous power (TIMMERMANS ¶20). Therefore, it would have been obvious to one of ordinary skill in the art to have a continuous power range because doing so would control the level of power and user-directed functions to a profile to customize profiles for a user (TIMMERMANS ¶20, ¶85).
Regarding claim 15, modified BORKOVEC discloses the electronic vapor provision system according to claim 1 as discussed above. BORKOVEC does not disclose the available power level ranges comprises a plurality of discrete stepped levels, each of which can be supplied in response to a corresponding manual user actuation.
TIMMERMANS teaches a real time variable voltage programmable electronic cigarette device with programable function that enables a user to set the voltage output and power output level applied to the atomizer when energized (abstract). TIMMERMANS teaches that the software allows a user to control the voltage and power ranges in which the cigarette will operate (Fig. 7, ¶83). TIMMERMANS specifically teaches multiple programming options including increasing or decreasing the vaping profile by steps (¶66).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified BORKOVEC to provide that the available power level ranges comprises a plurality of discrete stepped levels, each of which can be supplied in response to a corresponding manual user actuation as taught in TIMMERMANS. A person of ordinary skill in the art would obviously control with a plurality of discrete stepped levels as a way of customizing the user profile (TIMMERMANS ¶66, ¶¶85).
Regarding claim 16, modified BORKOVEC discloses the electronic vapor provision system according to claim 1. BORKOVEC further discloses an activation unit configured to detect an input and in response initiate the supply of power to the vaporizer prior to control of the level of power by the control unit (¶2, ¶36).
Regarding claim 17, modified BORKOVEC discloses the electronic vapor provision system according to claim 16. BORKOVEC further discloses the activation unit is configured to detect a manual input (¶36, ¶44).
Regarding claim 18, modified BORKOVEC discloses the electronic vapor provision system according to claim 16. BORKOVEC further discloses the activation unit is configured to detect a user inhalation (¶36).
Regarding claim 19, modified BORKOVEC discloses the electronic vapor provision system according to claim 1. BORKOVEC further discloses the vaporizer is configured to generate vapor from a liquid (¶36).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over BORKOVEC, SCHECK, BELLINGER, and TIMMERMANS as applied to claim 1 above, and further in view of CN 106037022 A (hereinafter CHENM) included in applicant's information disclose statement filed October 7, 2019.
Regarding claim 13, BORKOVEC discloses the electronic vapor provision system of claim 1 as discussed above. BORKOVEC does not disclose, but CHENM teaches wherein the control unit is further configured to prevent power being supplied from the electrical power supply to the vaporizer when amount of pressure applied by the user during manual user actuation detected by the user input unit is below a threshold value (CHENM ¶7, ¶13-¶14).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified BORKOVEC to prevent power being supplied from the electrical power supply to the vaporizer when the level of manual user actuation detected by the user input unit is below a threshold value as taught in CHENM. A person of ordinary skill in the art would obviously prevent power from being supplied if the key being pressed exceeds a safety limit (CHEMN ¶13). Doing so would prevent malfunction, communicate to the user a warning signal, and automatically lock the device into a shutdown mode. A person of ordinary skill in the art using the button disclosed in BORKOVEC would apply the teachings of CHENM to the button to prevent malfunction and automatically lock the device.
Response to Arguments
Applicant’s arguments, filed February 26, 2026, with respect to the rejections of claims 1, 4, 6, and 16-19 under 35 USC 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new grounds of rejection is made in view of TIMMERMANS.
Applicant argues, “The Office Action then cites Timmermans as disclosing "a real time variable voltage programmable electronic cigarette device with programable function that enables a user to set the voltage output and power output level applied to the atomizer when energized". However, Applicants submit that the functionality disclosed in Timmermans does not allow for an adjustment to the power level from an available continuous range during vapour generation, as set out in claim 1. Instead, Timmermans discloses that a user can preset a specific vaping profile for the device to subsequently follow, as proven by [0020] which discloses how the vaping profile can be saved to the memory of the device. This means that a power level is not set or adjustable whilst vapour is being generated (i.e. there is no disclosure of instantaneous adjustment across an available range). Therefore, even if the programmable functionality of Timmermans was implemented into the device of Borkovec, it would merely allow for power to be selected by a user before vapour was generated (i.e. before usage), but not during vapour generation, as required by claim 1. Claim 1 is therefore not obvious.”
The claim is read in light of applicant’s specification to determine what the term “continuous” means. Applicant has defined “continuous” as the input unit is configured to enable continuous in-use alteration of the level of electrical power (See PG Pub of instant application ¶28). Applicant discloses that the power level is immediately or near-immediately altered based on user input. Applicant further discloses that the process is continuous in that the level can be continuously altered (¶28). Applicant further discloses that this is done over a continuous range by gradual depression of a button (¶29). This broadly teaches any analog system with multiple ranges vs a digital system that would be on/off.
As explained above, and not repeated here, TIMMERMANS discloses a continuous range (¶20) and a continuous operation (¶83). The fact that TIMMERMANS also allows for a preset (¶20) does not detract from the overall teaching that the system is a real time variable programmable system (title) and will change during the operation. The power level does in fact adjust during vaporization, even if, as argued by applicant, a profile is chosen prior to vaporization.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE L MOORE whose telephone number is (313)446-6537. The examiner can normally be reached Mon - Thurs 9 am to 5 pm.
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, Michael H Wilson can be reached on 571-270-3882. 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.
/STEPHANIE LYNN MOORE/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
Prosecution Insights