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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10/27/2025 has been entered.
Response to Arguments
Applicant's arguments filed 10/27/2025 have been fully considered but they are not persuasive.
With respect to the rejection under 35 U.S.C. § 101, Applicant contends that the claim, when viewed “as a whole,” integrates any alleged judicial exception into a practical application by dynamically adjusting a heating cycle based on an exhaustion level during use. These arguments are not persuasive.
The claim recites the following abstract idea:
collecting usage information, determining a consumable exhaustion level, comparing the exhaustion level to a threshold, and adjusting operation based on that determination.
Such steps constitute data collection, analysis, comparison, and conditional action, which fall squarely within the categories of judicial exceptions identified in MPEP § 2106.04(a), including mental processes and methods of organizing human activity. The functional result such as adjusting a heating cycle to avoid over- or under-consumption, is itself an abstract decision rule, not a technological improvement.
Although the claim recites a smoking substitute device, a puff sensor, and a controller, the recitation of generic components performing their well-understood functions does not integrate the abstract idea into a practical application. The Specification expressly describes each component at a high level of generality and in a manner consistent with conventional electronic vaporizer devices:
Sensors (puff, pressure, acoustic, airflow) are described generically (e.g., ¶[0051], ¶[0080]).
The controller is described as a generic microcontroller executing instructions stored in memory (¶¶[0081]–[0085]).
The heating element and its operation are described in routine terms common to heat-not-burn devices (¶ ¶[0063]–[0068]).
The “exhaustion level” is determined by routine variables such as usage measurements, temperature, power levels, and time (¶¶ [0052]–[0057]).
Nothing in the Specification describes or attributes any unconventional behavior or technical improvement to these components, nor is any specialized hardware disclosed. The claim therefore does not improve the functioning of the controller, the sensor, the heater, or any other technology, but merely uses generic components to implement the abstract decision-making logic.
Accordingly, the claim does not integrate the judicial exception into a practical application, consistent with MPEP § 2106.05(a)–(c), (e)–(h).
Applicant further asserts that the ordered combination of elements i.e. including the puff sensor, controller, exhaustion calculation, and cycle-length adjustment, constitutes a “non-conventional arrangement.” This argument is not supported by the record.
The Specification fails to identify anything unconventional, technical, or innovative about: the puff sensor, the controller architecture, the heater control circuitry, the exhaustion calculation, or the threshold-based adjustment of the heating cycle.
Instead, the Specification confirms that each component is routine, interchangeable, and well-understood in the field of electronic smoking substitute devices. The controller performs standard operations such as receiving sensor input, executing stored instructions, comparing values to thresholds, and adjusting power output (¶[0081]–[0085]). These are routine control tasks performed by generic processors.
Applicant’s argument relies on the alleged “result” such as avoiding overheating or improving user experience. However, intended results or benefits do not amount to an inventive concept. MPEP § 2106.05(d) explains that even if individual elements are generic, a non-conventional and non-generic arrangement may supply an inventive concept; however, the record contains no indication that the claimed arrangement is anything other than routine. Attorney argument alone cannot establish unconventionality. See MPEP § 2106.05(d); Berkheimer v. HP Inc.
Furthermore, the claim merely instructs a generic controller to apply a conditional control rule (shorten or extend the cycle depending on exhaustion level). Courts have consistently held that automating an abstract decision process using generic hardware does not constitute significantly more. See Electric Power Group, BSG Tech, Two-Way Media, Customedia, and ChargePoint.
Applicant’s reliance on BASCOM is unpersuasive because the claim lacks any specific, technical implementation or architecture that yields an improvement in the operation of the device itself. BASCOM requires a technically unconventional arrangement of known components; here, none is present.
Accordingly, the claim does not include additional elements or a combination of elements that amount to significantly more than the judicial exception itself, as required under Step 2B.
In conclusion, Applicant has not shown that the claim is directed to anything other than an abstract idea implemented using generic components performing routine functions as described in the Specification. The claim does not integrate the exception into a practical application, nor does it recite an inventive concept.
Therefore, the rejection under 35 U.S.C. § 101 is maintained.
With respect to the rejection under 35 U.S.C. § 103, Applicant’s argues that the cited combination of Skoda and Cameron fails to teach or suggest several key limitations of the claims.
Applicant contends that Skoda fails to disclose extending or shortening the duration of the consumable cycle in response to actual usage based on whether the exhaustion level is below or above an exhaustion threshold, and further argues that Cameron does not remedy this deficiency because Cameron’s threshold relates to nicotine concentration or usage time rather than consumable exhaustion. These arguments do not address the rejection as made.
The rejection does not rely on Skoda to teach the “extend or shorten” feature. Skoda is relied upon only for teaching determining a usage-based or consumption-based condition of the consumable and controlling aspects of the device based on that condition. Applicant’s assertion that Skoda does not disclose modifying the consumable cycle duration does not rebut the rejection because Skoda was not cited for that limitation.
Cameron is relied upon to teach the missing feature. Cameron discloses tracking usage of the vapor device, comparing the measured usage to a predetermined threshold, and modifying the duration of the vaping session when the threshold is exceeded. Cameron further teaches that different operating conditions, such as nicotine strength, correspond to shorter or longer allowable usage durations, which is a direct disclosure of shortening or extending the duration of a consumable-use session based on a threshold condition. This is the type of control action recited in the claim, and it remedies the limitation Skoda does not explicitly state.
Applicant’s argument that Cameron does not use the same variable as the claim (i.e., exhaustion level) is not persuasive. Under 35 U.S.C. § 103, the reference relied upon for the control concept does not need to use the identical measured parameter recited in the claim. Cameron teaches the principle of adjusting the duration of a vaping session in response to a usage-related threshold, and a person of ordinary skill in the art would have understood that this threshold-based control logic can be applied to Skoda’s exhaustion-level determination to improve regulation of consumable usage. This represents a predictable use of known techniques in the art.
When considered together, Skoda teaches determining the exhaustion level of the consumable, and Cameron teaches modifying the duration of the consumable cycle based on whether a usage-related threshold condition is satisfied. Their combination yields the claimed operation. Applicant does not provide evidence of incompatibility, teaching away, or any technical reason why a person of ordinary skill would not have made this predictable combination.
Accordingly, the rejection under 35 U.S.C. § 103 is MAINTAINED.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 10 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 1 for which claim 10 depends from already recites that the controller is configured to shorten the duration of the consumable cycle when the exhaustion level is above a predefined maximum threshold. Therefore claim 10 does not add any additional limitation beyond that which is already required by claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1–7, 9–12, 13, 290, 296–300 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to a judicial exception (an abstract idea) without reciting significantly more.
Step 1 – Statutory Category
The claims are directed to a “smoking substitute device,” which is a machine. Therefore, the claims fall within a statutory category.
Step 2A Prong One – The Claims Are Directed to an Abstract Idea
When analyzed, the claims recite:
collecting data (for example measuring usage with a puff sensor, temperature sensor, or power sensor)
processing the collected data to determine an exhaustion level or compare the exhaustion level to a threshold
making a decision (for example extending or shortening a consumable cycle, controlling a heater, or adjusting an operating mode)
These operations correspond to mental processes and mathematical evaluations that are identified in the 2019 PEG as abstract ideas. Although the claims reference a smoking substitute device, the core of the invention is a rules-based decision process that evaluates conditions and adjusts cycle duration accordingly. This type of algorithmic control logic can be performed mentally or with basic mathematical comparison, and is considered an abstract idea.
The recited elements such as a puff sensor, controller, heater, or output means perform only their generic and conventional functions of receiving information, analyzing information, and outputting a result. Therefore, the claims are directed to an abstract idea under Step 2A Prong One.
Step 2A Prong Two – The Claims Do Not Integrate the Exception Into a Practical Application
The claims apply the abstract decision-making logic to the generic environment of a smoking substitute device. The claims do not improve the functioning of the device, the sensors, the controller, or any other machine component. The claims do not describe a new arrangement of hardware or a specific technological improvement.
The steps recited, such as measuring usage, determining exhaustion, comparing to thresholds, and adjusting cycle duration, are functional and results oriented. This type of field of use limitation does not integrate the abstract idea into a practical application according to the 2019 PEG. The device performs no technological function beyond what conventional vaporizers already perform.
For these reasons, the claims do not integrate the abstract idea into a practical application.
Step 2B – The Claims Do Not Recite Significantly More
Analysis proceeds to Step 2B because the claims are directed to an abstract idea. The additional elements of the claims consist of:
a generic controller
generic sensors
generic temperature or power monitoring
generic user output elements
a standard heating element
These elements are well understood, routine, and conventional (WURC) in the art. Their functions here are also conventional, such as collecting data, evaluating the data, comparing the data to a threshold, and adjusting device operation. The claims do not recite any unconventional arrangement of components, any improved hardware, or any specific technical improvement.
There is no inventive concept because the claims simply instruct a controller to apply the abstract idea with standard components. The claims automate a form of human decision making and do not meaningfully limit the judicial exception.
In Conclusion: Because the claims are directed to an abstract idea, do not integrate that idea into a practical application, and do not recite significantly more than the abstract idea itself, claims 1–7, 9–12, 13, 290, 296–300 are rejected under 35 U.S.C. § 101.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 5-10, 12-13, 290-291 and 297-300 are rejected under 35 U.S.C. 103 as being unpatentable over Skoda (US 2017/0014582), and further in view of Cameron (US 2017/0181474).
Regarding claim 1, 2, 9-10 and 290-291, Skoda teaches a smoking substitute device for heating a consumable according to a consumable cycle, the smoking substitute device (vaporization and inhaler apparatus [0061] comprising:
a measurement means/a sensor configured for measuring a usage of the smoking substitute device by a user during the consumable cycle (pressure sensors, fluid monitoring, etc., that might be used in various implementations to determine the remaining dispensable Substance in a device or cartridge [0063]);
and a controller (control system 204) configured to determine an exhaustion level of the consumable during the consumable cycle based on the usage (control system 204 configured to determine usage information in connection with updating and monitoring the use of Substances via the vaporization and inhaler apparatus 201 [0062]),
and wherein the controller is further configured to control an aspect of operation of the smoking substitute device during the consumable operating cycle based on the exhaustion level (determine how much power vaporizes how much of the given vaporizable or dispensable product from the cartridge based on a typical vapor draw, corresponding battery power reduction in relation to the total quantity of a remaining dispensable Substance [0062])
wherein the aspect of operation of the smoking substitute device comprises controlling a duration of the consumable cycle based on the exhaustion level (The device may include a counter and/or a timer configured to determine the number of vapor draws and or the duration of a vapor draw. The timer may be configured to determine the length of a vapor draw [0005]);
such that the controller is configured to extend or shorten the duration of the consumable cycle in response to actual usage, based on the determined exhaustion level.
Skoda teaches wherein the measurement means comprises a puff sensor configured to detect the user puffing on the consumable, wherein the usage of the smoking substitute device is based on a detection of at least one puff by the puff sensor (Sensor(s) 208 may be configured to sense a physical property Such as a change in pressure to detect a draw from the vaporization and inhaler apparatus [0063]).
Skoda teaches If the quantity remaining in the substance cartridge 202 is not below the predetermined threshold, the processor 204 will continue to monitor the conditions of future draws. If the quantity remaining in the Substance cartridge 202 is below a predetermined threshold, the processor 204 initiates a refill request at 307 [0064]. While Skoda is silent to extend or shorten the duration of the consumable cycle in response to actual usage based on if the exhaustion level is below or above an exhaustion threshold, Skoda nevertheless establishes the full framework for using exhaustion level and threshold conditions to adjust device operation.
However Cameron discloses a method and system for substance reduction via electronic vapor delivery device wherein the device can track vapor device usage (equivalent to claimed exhaustion level) over time. Each strength of nicotine (claimed consumable cycle) can have different threshold amount of time. Higher strengths of nicotine can have a smaller threshold amount of time (claimed shortened duration) whereas lower strengths of nicotine can have a larger threshold amount of time (claimed extended duration) [0112]. Thus, Cameron teaches controlling the duration of device operation based on whether a measured parameter is above or below a predefined threshold, which is the same control principle recited in the claims.
Cameron teaches modulating session duration based on a measured parameter crossing a threshold, and Skoda already establishes a controller that monitors exhaustion level, threshold conditions, and usage-based operation adjustments.
Therefore, it would have been obvious for one of ordinary skill in the art before the effective filling date of the claimed invention to modify the device of Skoda to include Cameron’s threshold-based extension or shortening of the consumable cycle. Doing so would have provided the predictable benefit of regulating consumable usage and improving user control over substance delivery as taught by Cameron [0036].
Regarding claim 5, Skoda teaches wherein the smoking substitute device includes an environmental temperature measurement means configured to measure an environmental temperature of theprocessor 204 may sense other parameters such as changes in…temperature of the cartridge…to determine the vapor draw consumption at 304 [0064]).
Regarding claim 6, Skoda teaches wherein the determination of the exhaustion level is based on an environmental temperature measurement (processor 204 may sense other parameters such as changes in…temperature of the cartridge…to determine the vapor draw consumption at 304 [0064]).
Regarding claim 7, Skoda teaches wherein the determination of the exhaustion level is based on a user-selectable operating mode of the smoking substitute device during the consumable cycle (the processor 204 determines the remaining quantity of substance in the substance cartridge 202 at 305. The processor 204 analyzes whether the remaining quantity of the substance in the substance cartridge 202 determined at 305 is at or below a predetermined threshold. The predetermined threshold may be manually programmed by the user [0064]).
Regarding claim 8, Skoda teaches wherein the aspect of operation of the smoking substitute device comprises controlling a duration of the consumable cycle based on the exhaustion level (controller 204 may monitor the duration of vaporization for example by determining the duration and quantity of heating events [0063]).
Regarding claim 12-13, Skoda teaches a user output means wherein the user output means includes one or more lights or a haptic feedback component for providing user feedback to the user, wherein the controller is configured to control the user output means to indicate to the user the control of the aspect of the operation of the smoking substitute device (additional devices 130a-130n have both input and output capabilities, including, e.g., haptic feedback devices, touchscreen displays, or multi-touch displays. [0046]).
Regarding claim 297, Skoda discloses a smoking substitute device comprising a heater and a controller configured to operate the heater based on a user’s vapor draw request and other consumption parameters (¶¶[0063]–[0065]). Skoda teaches that the controller determines the duration and quantity of heating events and varies heating behavior based on measured parameters such as puff profile or consumption quantity (¶[0063]), thereby adjusting the power levels supplied to the heater depending on the operating conditions. Skoda further teaches that different operating modes (e.g., based on vapor draw characteristics or substance quantity) correspond to different heating behaviors, as the heating behavior is adjusted dynamically (¶[0065] describing multiple heaters and selective heating depending on user interaction with the device). Thus, the operating modes in Skoda correspond to different power levels supplied to the heater, thereby reading on the limitation of claim 297.
Regarding claim 298, Skoda discloses a controller (204) and processor (205) configured to monitor heating events and calculate a value associated with a quantity of substance consumed (¶¶ [0063]–[0064]). Skoda teaches that the processor determines consumption based on the duration of heating events or power consumption, stating that “the controller 204 may monitor the duration of vaporization, for example by determining the duration and quantity of heating events” and that “the processor 205 uses this information… to determine a value associated with a quantity of substance consumed.” (¶ [0063]).
Thus, Skoda teaches claim 298 because it explicitly teaches both alternative conditions recited in the claim: determining the quantity based on power applied and heating duration.
Regarding claim 299, Skoda discloses a vaporization device including a controller (204) configured to determine exhaustion level based on usage (¶¶ [0063]–[0064]) and to adjust operation accordingly (¶ [0066]).
Skoda teaches that when substance quantity is low (below a threshold), the processor may reduce consumption or extend usability (e.g., prompt refills or modify behavior), and when above the threshold, regular operation continues but does not explicitly recite wherein the controller is configured to: extend the duration of the consumable cycle if the exhaustion level is below a predefined minimum exhaustion threshold; and shorten a duration of the consumable cycle if the exhaustion level is above a predefined maximum exhaustion threshold; wherein the minimum exhaustion level and the maximum exhaustion level define a desired exhaustion range for a time in the consumable cycle at which the exhaustion level is determined.
However, it would have been obvious to a one of ordinary skill in the art before the effective filling date of the claimed invention to configure the controller to extend the consumable cycle if exhaustion is below a minimum threshold and shorten it when above a maximum threshold, as a means to optimize substance usage based on availability and consumption demands, which Skoda teaches directly and indirectly (¶¶ [0063], [0064], [0066]). The desired exhaustion range is inherently taught in Skoda’s disclosure of threshold-based control systems.
One would be motivated to modify the controller’s response logic in view of Skoda’s teachings to balance consumption and availability by dynamically adjusting operation times within set thresholds. This would provide efficient use of remaining substance and improved user experience.
Regarding claim 300, Skoda discloses a system where the controller (204) determines substance exhaustion levels (e.g., via sensors 208 or counters 207) and adjusts operation accordingly (¶¶ [0063], [0064]). The processor monitors and adjusts usage multiple times, as evident in the discussion of dynamic sensing and control during vapor draw cycles (¶ [0063]–[0065]).
Therefore, it would have been obvious to a person of ordinary skill in the art to determine exhaustion level and adjust cycle duration repeatedly during a cycle, as such feedback control systems were well-known and directly supported by Skoda’s dynamic consumption monitoring and adaptive refill/request behavior.
One would be motivated to make the modification because Skoda’s feedback-based system naturally lends itself to iterative or continuous control during use, and implementing multiple assessments and adjustments during the consumable cycle would predictably enhance precision and efficiency in resource management.
Claim(s) 3-4, 11 and 296 are rejected under 35 U.S.C. 103 as being unpatentable over Skoda (US 2017/0014582) and Cameron (US 2017/0181474) as applied to claim 1 above, and further in view of Thorens (US 20170318861).
Regarding claim 3-4, and 11, Skoda teaches sensor(s) 208 may be configured to sense…a change in temperature or other parameter associated with a vapor draw from the vaporization and inhaler apparatus 201 and the processor 204 may sense other parameters such as changes temperature of the cartridge…to determine the vapor draw consumption (claimed exhaustion level) [0064] but is silent to calculating the exhaustion level based on an operating temperature of a heater and power level supplied to the heater or controlling an operating temperature of the heater.
However Thorens teaches modifying operation of the vaporization device [by] …modifying a power supplied to a heating element or other aerosol generating component, modifying a control strategy, for example by modifying a target temperature or the duration of application of power to a heater [0058]. Thorens further discloses the power supply may have sufficient capacity to allow for a predetermined number of puffs or discrete activations of a heating element [0048].
Therefore it would have been obvious for one of ordinary skill in the art before the effective filling date of the claimed invention to modify the device of Skoda to include the features of Thorens for the benefit discrete activation of the heater as disclosed by Thorens.
Regarding claim 296, Skoda teaches a vaporization device configured to dispense a consumable substance in the form of vapor or aerosol to a user for inhalation (Skoda ¶¶ [0003]–[0005]). Skoda discloses a processor-controlled device capable of metering and adjusting delivery based on usage data, but does not explicitly disclose that the device is a “heat-not-burn” device—i.e., a device that heats a tobacco product or consumable to generate aerosol without combustion.
Thorens, however, discloses a heat-not-burn smoking system where the aerosol-forming substrate is heated (but not combusted) to form an aerosol for user inhalation (Thorens ¶ [0032]). Thorens explains that such heat-not-burn systems enable aerosol generation while avoiding combustion byproducts, which improves the safety profile of the smoking substitute.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Skoda’s vaporization device to include the heat-not-burn configuration taught by Thorens, because Thorens teaches that heating without combustion achieves the same inhalable aerosol effect while reducing harmful byproducts associated with burning (Thorens ¶ [0032]). This is consistent with the purpose of Skoda’s system, which is also directed toward delivering active ingredients via aerosol or vapor to a user without traditional combustion.
Conclusion
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/JENNIFER A KESSIE/Examiner, Art Unit 1747