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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/04/2025 has been entered.
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.
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, 10, 12, and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Verleur et al (US 2016/0198767) in view of Tullis et al (US 6472887) and Young et al (US 2013/0174842).
Regarding claim 1, Verleur discloses a cartridge coupled or coupleable with a control body that is equipped with a control component (Fig. 9 #150 PCB) including a microprocessor ([0023] lines 1-3 ---"The Printed Circuit Board (PCB) 150 may include, for example, a light emitting diode (LED), a microcontroller, at least one capacitor, and at least one resistor.”), the control body being coupled or coupleable with the cartridge to form an aerosol delivery device, the cartridge comprising:
a housing (Fig. 8 #210 cartomizer body) defining a reservoir configured to retain aerosol precursor composition;
a heating element (Fig. 8 #240 heating element) configured to operate in an active mode in which the cartridge is coupled with the control body, the heating element (Fig. 8 #240 heating element) in the active mode being controllable by the control component to activate and vaporize components of the aerosol precursor composition;
and a proximity sensor (Fig. 8 #350 fluid level sensor), the proximity sensor or control component being configured to control at least one element function of the aerosol delivery device in response to the level of the aerosol precursor composition so detected ([0034] ---" In another embodiment, referring now to FIG. 9, the associated circuitry and switch 330 may be added to the PCB 150 in the battery housing 100. The output of the associated circuitry may be connected to a digital input of the microcontroller and the microcontroller firmware may be modified to turn off the heating coil if the signal indicates that the fluid level/humidity is below the predetermined level.”).
However, Verleur does not disclose a proximity sensor within the housing configured to interact with the reservoir to detect a level of the aerosol precursor composition in the reservoir without requiring any physical contact with the aerosol precursor composition.
Nonetheless, Tullis in the same field of endeavor being electric heating incorporating capacitive sensing, teaches a proximity sensor configured to detect a level of the aerosol precursor composition in the reservoir without requiring any physical contact with the aerosol precursor composition (Col. 3 lines 17-18 ---" The toner-capacitor is formed by placing two electrodes 310 and 315 outside the toner container 320.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cartridge of Verleur to incorporate the capacitive sensor outside of the cartridge as taught by Tullis for the benefit of reducing manufacturing cost. (Tullis Col. 2 lines 59-62)
However, Verleur in view of Tullis does not teach the proximity sensor within the housing.
Nonetheless, Young in the same field of endeavor being vaporizer devices teaches the proximity sensor within the housing ([0099] lines 4-8 ---" Position sensor 73 can comprise a proximity switch (e.g., optical), encoder, inductive (e.g., non-contact), Hall effect sensor, and other such devices. Position sensor 73 can be positioned anywhere within cavity 66 or attached to various portions of housing 60.”).
Nonetheless, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to position the proximity sensor inside the housing, since it has been held that rearranging parts of an invention involves only routine skill in the art. MPEP 2144.04 V. C.
Regarding claim 2, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim 1), and Verleur teaches wherein the proximity sensor is a capacitive, ultrasonic, Hall effect, photoelectric or non-mechanical magnetic proximity sensor ([0033] lines 3-6 ---" The fluid level sensor 350 (capacitive, resistive or thermal conductivity humidity sensor) may be placed inside the cartomizer 200 in proximity to the heating element 240, inside the fiber batting 270.”).
Regarding claim 3, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim 1), and Tullis teaches wherein the proximity sensor includes first (Fig. 3 #310 first electrode) and second (Fig. 3 #315 second electrode) capacitive proximity sensors configured to measure respectively first and second capacitances that indicate respectively a level and a reference (Col. 3 lines 17-24 ---" The toner-capacitor is formed by placing two electrodes 310 and 315 outside the toner container 320. The A.C. power source 325 drives the first electrode 310 of the toner-capacitor. This driving induces current flow between the amplifier 330 and the second electrode 315 of the toner-capacitor 305. The magnitude of this induced current depends on the capacitance C.sub.T of the toner-capacitor, and thereby on the amount of toner in the container 320.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cartridge of Verleur in view of Tullis and Young by incorporating the first and second capacitive proximity sensors as taught by Tullis for the benefit of reducing manufacturing cost. (Tullis Col. 2 lines 59-62)
Regarding claim 4, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim 1), and Verleur teaches wherein the proximity sensor or control component being configured to control at least one function includes being configured to control a sensory-feedback member to provide a user-perceptible feedback ([0033] lines 6-11 ---" The associated circuitry may be operable to amplify and determine if the fluid level/humidity is above some predetermined level, as well as a switch 330 (e.g., Power FET) to interrupt the flow of current to the heating coil, may be installed upon a small PCB 340, also contained inside the cartomizer.” Examiner considers the user-perceptible feedback to be no more vapor being produced due to the interrupted flow of current to the heating coil.).
Regarding claim 10, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim1), and Verleur teaches wherein the proximity sensor or microprocessor being configured to control at least one function includes being configured to alter a power state associated with the function ([0033] lines 6-11 ---" The associated circuitry may be operable to amplify and determine if the fluid level/humidity is above some predetermined level, as well as a switch 330 (e.g., Power FET) to interrupt the flow of current to the heating coil, may be installed upon a small PCB 340, also contained inside the cartomizer.”).
Regarding claim 12, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim1), and Verleur teaches wherein the proximity sensor or microprocessor being configured to alter the power state associated with the function includes being configured to alter the power state of the heating element in response to the level of the aerosol precursor composition so detected ([0033] lines 6-11 ---" The associated circuitry may be operable to amplify and determine if the fluid level/humidity is above some predetermined level, as well as a switch 330 (e.g., Power FET) to interrupt the flow of current to the heating coil, may be installed upon a small PCB 340, also contained inside the cartomizer.”).
Regarding claim 14, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim1), and Verleur teaches wherein the proximity sensor or control component being configured to control at least one function includes being configured to control the at least one function in response to a threshold of the level of the aerosol precursor composition so detected ([0033] lines 6-11 ---" The associated circuitry may be operable to amplify and determine if the fluid level/humidity is above some predetermined level, as well as a switch 330 (e.g., Power FET) to interrupt the flow of current to the heating coil, may be installed upon a small PCB 340, also contained inside the cartomizer.”).
Claim(s) 6-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Verleur et al (US 2016/0198767) in view of Tullis et al (US 6472887) and Young et al (US 2013/0174842) as applied to claim 1, in further view of Bammer et al (US 2015/0045727).
Regarding claim 6, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim 1), but does not teach wherein the proximity sensor or control component being configured to control at least one function includes being configured to upload to a service platform, data associated with the level of the aerosol precursor composition detected by the proximity sensor.
Nonetheless, Bammer in the same field of endeavor being capacitive sensing of fluids in a container, teaches wherein the proximity sensor or control component being configured to control at least one function includes being configured to upload to a service platform, data associated with the level of the aerosol precursor composition detected by the proximity sensor ([0047] ---"A capacity and measurement determination unit 15 is provided that respectively determines the ratio between the voltage at the output of the reference capacitor 11 and the voltage between the two electrodes 4, 5 and keeps this result available at its output and transmits it to the communication unit 7. A conversion of this ratio into a capacity or a value derived therefrom may be performed, whereby the respective ratio is respectively compared with reference ratios determined in advance at specified capacity values. Thus, for example, the capacity value Cm obtained can be converted according to the diagram of FIG. 3 into the respective fill level L of the fluid 14 in the fluid container. The communication unit 7 transmits this ratio or the respective converted value on request to the external data communication device 40.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cartridge of Verleur in view of Tullis and Young by incorporating the capacity and measurement determination unit and communication unit as taught by Bammer for the benefit of transmitting the ratio or the respective converted value on request to an external data communication device.
Regarding claim 7, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim 1), but does not teach wherein the proximity sensor includes first and second capacitive proximity sensors configured to measure respectively first and second capacitances that indicate respectively a level and a reference, and the proximity sensor being configured to detect the level of the aerosol precursor composition includes being configured to calculate the level of the aerosol precursor composition from the first and second capacitances.
Nonetheless, Bammer in the same field of endeavor being capacitive sensing of fluids in a container, teaches the proximity sensor includes first (Fig. 4 #s 4 and 5 two electrodes) and second capacitive proximity sensors (Fig. 4 #11 reference capacitor) configured to measure respectively first and second capacitances that indicate respectively a level and a reference ([0047] lines 1-6 ---" A capacity and measurement determination unit 15 is provided that respectively determines the ratio between the voltage at the output of the reference capacitor 11 and the voltage between the two electrodes 4, 5 and keeps this result available at its output and transmits it to the communication unit 7.”),
and the proximity sensor being configured to detect the level of the aerosol precursor composition includes being configured to calculate the level of the aerosol precursor composition from the first and second capacitances ([0047] lines 6-12 ---" A conversion of this ratio into a capacity or a value derived therefrom may be performed, whereby the respective ratio is respectively compared with reference ratios determined in advance at specified capacity values. Thus, for example, the capacity value Cm obtained can be converted according to the diagram of FIG. 3 into the respective fill level L of the fluid 14 in the fluid container.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cartridge of Verleur in view of Tullis and Young by incorporating the proximity sensor as taught by Bammer for the benefit of converting a capacitance value to fluid container capacity value. (Bammer [0047])
Regarding claim 8, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim 1), but does not teach wherein the proximity sensor includes first and second capacitive proximity sensors configured to measure respectively first and second capacitances that indicate respectively a level and a reference, and the proximity sensor being configured to detect the level of the aerosol precursor composition includes being configured to output or output signals corresponding to the first and second capacitances for the control component to calculate the level of the aerosol precursor composition from the first and second capacitances.
Nonetheless, Bammer teaches wherein the proximity sensor includes first (Fig. 4 #s 4 and 5 two electrodes) and second capacitive proximity sensors (Fig. 4 #11 reference capacitor) configured to measure respectively first and second capacitances that indicate respectively a level and a reference ([0047] lines 1-6 ---" A capacity and measurement determination unit 15 is provided that respectively determines the ratio between the voltage at the output of the reference capacitor 11 and the voltage between the two electrodes 4, 5 and keeps this result available at its output and transmits it to the communication unit 7.”),
and the proximity sensor being configured to detect the level of the aerosol precursor composition includes being configured to output or output signals corresponding to the first and second capacitances for the control component to calculate the level of the aerosol precursor composition from the first and second capacitances ([0047] lines 6-12 ---" A conversion of this ratio into a capacity or a value derived therefrom may be performed, whereby the respective ratio is respectively compared with reference ratios determined in advance at specified capacity values. Thus, for example, the capacity value Cm obtained can be converted according to the diagram of FIG. 3 into the respective fill level L of the fluid 14 in the fluid container.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cartridge of Verleur in view of Tullis and Young by incorporating the proximity sensor as taught by Bammer for the benefit of converting a capacitance value to fluid container capacity value. (Bammer [0047])
Claim(s) 5 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Verleur et al (US 2016/0198767) in view of Tullis et al (US 6472887) and Young et al (US 2013/0174842) as applied to claim 1, in further view of Tremblay et al (US 2015/0181945).
Regarding claim 5, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim 1), but does not teach wherein the proximity sensor or control component being configured to control at least one function includes being configured to control the at least one function to alter a locked state of the aerosol delivery device.
Nonetheless, Tremblay in the same field of endeavor being electronic vaping devices, teaches wherein the proximity sensor or control component being configured to control at least one function includes being configured to control the at least one function to alter a locked state of the aerosol delivery device ([0181] ---" For example, in some embodiments, the controller 160 of the electronic cigarette 100 may be responsive to the detectable pattern of drawing 820 on the outlet 152 of the electronic cigarette 100 to enable the vapor-providing capability of the electronic cigarette 100. The vapor-providing capability of the electronic cigarette 100 may be disabled by default (e.g., after a period of time such as 5 or 10 minutes following a last time it was used for vaping) and enabled when the controller 160 detects the detectable pattern of drawing 820 on the outlet 152 of the electronic cigarette 100. The user may thus perform the detectable pattern of drawing 820 on the outlet 152 of the electronic cigarette 100 to "unlock" the electronic cigarette 100. In that sense, the detectable pattern of drawing 820 can be viewed as a fluid-drawing (e.g., inhalation) "passcode" to be carried out by the user in order to be able to vape the electronic cigarette 100.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cartridge of Verleur in view of Tullis and Young by incorporating the user ability to alter a lock function as taught by Tremblay for the benefit of preventing unauthorized vaping by a child, teenager or other individual. (Tremblay Abstract)
Regarding claim 9, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim1), but does not teach wherein the at least one function is user- programmable.
Nonetheless, Tremblay in the same field of endeavor being electronic vaping devices, teaches wherein the at least one function is user- programmable ([0124] ---" In some embodiments, as shown in FIG. 12, the communication device 400 is a mobile communication device (e.g., a smartphone or other wireless phone; a tablet computer; a head-mounted display, smartwatch or other wearable device; etc.) of the user which runs a software application (e.g., a mobile app) that relates to the electronic cigarette 100 and monitors user input through the user interface of the mobile communication device 400. The user input may indicate a desire of the user to alter (e.g., enable, increase, disable, or decrease) the vapor-providing capability of the electronic cigarette 100. The software application translates the user input into an external VCA command and transmits the external VCA command to the electronic cigarette 100 over the communication link 440, which is a wireless connection.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cartridge of Verleur in view of Tullis and Young by incorporating the user programmability to effectuate disabling functionality of the heater as taught by Tremblay for the benefit of preventing unauthorized vaping by a child, teenager or other individual. (Tremblay Abstract)
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Verleur et al (US 2016/0198767) in view of Tullis et al (US 6,472,887) and Young et al (US 2013/0174842) as applied to claim 10, in further view of Bammer et al (US 2015/0045727).
Regarding claim 11, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim 10), but does not teach wherein the proximity sensor or microprocessor being configured to alter the power state associated with the function includes being configured to alter the power state of a communication interface coupled to the microprocessor and configured to enable wireless communication.
Nonetheless, Bammer in the same field of endeavor being capacitive sensing of fluids in a container, teaches wherein the proximity sensor or microprocessor being configured to alter the power state associated with the function includes being configured to alter the power state of a communication interface coupled to the microprocessor and configured to enable wireless communication ([0045] ---" An essential advantage of the invention is that, to determine the capacity between the two electrodes 4, 5, and, if applicable, the capacity of the reference capacitor 11, no additional voltage generator or additional battery is required; the energy required to determine the respective capacity can be obtained directly from the magnetic field generated by the data communication device 40.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cartridge of Verleur in view of Tullis and Young by incorporating the configuration of the microprocessor as taught by Bammer for the benefit of to determine the capacity between the two electrodes and, if applicable, the capacity of the reference capacitor, with no additional voltage generator or additional battery required. (Bammer [0045])
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Verleur et al (US 2016/0198767) in view of Tullis et al (US 6,472,887) and Young et al (US 2013/0174842) as applied to claim 10, in further view of Tremblay et al (US 2015/0181945).
Regarding claim 13, Verleur in view of Tullis and Young teaches the cartridge as appears above (see the rejection of claim 10), but does not teach wherein the proximity sensor or microprocessor being configured to alter the power state associated with the function includes being configured to alter the power state of one or more of a visual indicator, an audio indicator, and a haptic indicator in response to the level of the aerosol precursor composition so detected.
Nonetheless, Tremblay in the same field of endeavor being electronic vaping devices, teaches wherein the proximity sensor or microprocessor being configured to alter the power state associated with the function includes being configured to alter the power state of one or more of a visual indicator, an audio indicator, and a haptic indicator in response to the level of the aerosol precursor composition so detected ([0111-0113] ---" VCA events (whether local or remote) may be defined by one or more conditions (e.g., circumstances) that may involve various factors, including, for example, one or more of: [0112] an indication of a desire of the user to alter (e.g., enable, disable, increase or decrease) the vapor-providing capability of the electronic cigarette 100; [0113] an identity of the user (e.g., to prevent any other individual or any person not authorized to vape to use the electronic cigarette 100);” [0119] ---"a status of the container 124 of the vapor producer 120, such as fill level (e.g., full, empty, remaining quantity, etc.) of the container 124 (e.g., if almost empty, a first vape in a new series of vapes can be restricted to remind the user that he/she soon will need to change or replenish the container 124);” and [0227] lines 13-21 ---" The option may be provided by displaying a message or other graphical element on the display of the communication device 400 that prompts the owner of the electronic cigarette 100 to indicate whether he/she would like to disable, reduce or otherwise alter the vapor-providing capability of the electronic cigarette 100 and that can be acted upon by the owner of the electronic cigarette 100 (e.g., by clicking on a button or other actionable element) of the user interface of the mobile communication device 400.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cartridge of Verleur in view of Tullis and Young by incorporating the visual indicator as taught by Tremblay for the benefit of reminding the user that he/she soon will need to change or replenish the container. (Tremblay [0119])
Response to Arguments
Applicant's arguments filed 11/04/2025 have been fully considered but they are not persuasive.
Applicant argues that the Final Office Action mailed on 09/04/2025 was improper. Examiner respectfully disagrees.
Applicant amended claim 1 to recite “the proximity sensor or control component being configured to control at least one function of the aerosol delivery device in response to the level of the aerosol precursor composition so detected.” This amendment changed the scope of the invention. Finality is proper based on the change of scope.
Applicant’s arguments, see pages 6-9, filed 09/04/2025, with respect to the rejection(s) of claim(s) 1-4, 10, 12, and 14 under 35 U.S.C.§103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Young et al (US 2013/0174842).
Applicant argues that the Verleur in view of Tullis does not teach a proximity sensor within the housing. Examiner respectfully agrees.
However, Young teaches a proximity sensor within the housing. Verleur is relied upon to teach a proximity sensor in a cartridge of a vaporizer. Tullis is relied upon to teach the function of the proximity sensor, sensing the amount of fluid in a container. The combination of Verleur in view of Tullis and Young teaches a proximity sensor within the housing and configured to interact with the reservoir to detect a level of the aerosol precursor composition in the reservoir without requiring any physical contact with the aerosol precursor composition.
Applicant argues that Tullis actually teaches away from implementing electrodes of a toner-capacitor sensor outside of the cartridge. Examiner respectfully disagrees.
Tullis is not relied upon to teach the position of the proximity sensor, only its function.
Furthermore, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Conclusion
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOE E MILLS JR. whose telephone number is (571)272-8449. The examiner can normally be reached M-F 8-5.
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/JOE E MILLS JR./ Examiner, Art Unit 3761