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 .
Response to Amendment
The amendment to the claims of 03/02/2026 is entered. Claims 16 is amended. Claims 17 and 40-41 are cancelled.
Status of Claims
Claims 16, 37-39, and 42-48 are pending. Claims 37-39 are withdrawn.
Response to Arguments
Applicant's arguments filed 03/02/2026 have been fully considered but they are not persuasive.
Applicant argues the claimed subject matter allows a particular operation of the device, such that if a user draws on the aerosol provision system for a long duration, the control circuit is able to activate a plurality of heating elements, presumably sequentially over time, to ensure a constant amount of aerosol is produced.
This operation is disclosed explicitly by Batista, ([0009] The aerosol generating device may be configured to heat the aerosol generating article until one or more aerosol forming substrates on the aerosol generating article has been depleted. The controller may be configured to activate the at least one heater in a series of discrete activations until the one or more aerosol forming substrates have been depleted. The controller may be configured to activate the at least one heater only when a negative pressure is applied to the aerosol generating device. The controller may be configured to continuously heat the at least one heater for the total time period, where the total time period is equal to the tum of the time period over which the at least one heater is activated during each activation).
This disclosure, based on Applicant arguments, appears to implicitly disclose controlling the device to generate aerosol from the aerosol generating substrate in proportion to the amount of air drawn through the air channel, where a proportionate amount of heaters are activated and deactivated in series overtime based on a proportionate amount of airflow based on the duration of that airflow.
The Examiner asserts that the sensor of Batista detects the negative pressure condition over a period of time, and signals the presence of the negative pressure condition over time to the controller, which indicates an amount of air drawn through the air channel. The claim does not require measuring an amount of air flow, and then controlling the heaters in response to the measured air flow, just an indication of the amount of air. Batista meets that limitation. Batista fairly discloses that the controller activates one or more of the heaters in proportion to the user drawing air through the air channel, to generate aerosol selectively from the different regions of the aerosol generating material, in response to the duration of the draw of air through the channel. The claim does not require the activation be in response to the amount of air, or both the amount of air and the duration of the draw of air through the channel, but as a practical matter, the duration of the draw does indicate the amount of air, where the actual quantity of air is not required to be measured. Batista discloses activating multiple heaters simultaneously. One of ordinary skill in the art would know that this would produce more aerosol. Batista does not disclose that it is desirable to produce a greater amount of aerosol in response to a greater draw by the user, a stronger puff rather than a longer one. Huang teaches measuring the airflow with a mass airflow sensor. Applicant argues this is mere flowrate measuring. The flow of air over time is the amount of air. Huan teaches that a stronger puff by a user, which is understood to be a magnitude of the air moving through the air channel, should produce a larger amount of aerosol.
One of ordinary skill would understand that to produce more aerosol from the device of Batista, to produce more aerosol in response to a stronger puff, as taught by Huang, one of ordinary skill in the art would merely activate more heaters. This is not considered by the Examiner to be inventive. The device of Batista was capable of activating multiple heaters, and the relationship of aerosol generation amount to number of heats activated at once is obvious.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claims 16-17 and 42-44 are rejected under 35 U.S.C. 103 as being unpatentable over Batista et al. (US 2017/0311647 A1), in view of Huang et al. (US 2016/0255878 A1).
Regarding claim 16, Batista discloses:
A reusable part of an aerosol provision system for generating an aerosol for user inhalation, ([0008] a device with a housing, the housing defining a cavity for receiving at least part of an aerosol generating article, and at least one heater positioned within the cavity), the reusable part comprising:
a housing including an interface configured to operatively engage with a replaceable part, ([0008], [0097], [0105], [011] Fig 1, 6, and 8]),
the replaceable part including a substrate comprising aerosol generating material for generating the aerosol for user inhalation, ([0009 the aerosol generating article comprises one or more aerosol forming substrates),
an air channel configured at least partially in the housing to provide a passage of air drawn by the user to receive the aerosol generated from the aerosol generating material of the replaceable part disposed with respect to the air channel, (Fig 1, 6, and 8),
a detector for detecting the passage of air drawn through the air channel, ([0009 the controller is configured to activate the at least one heater when negative pressure is applied to the aerosol generating device, reasonably suggesting a detector to detect the negative pressure condition), wherein the detector is configured to detect an amount of air drawn through the air channel, ([0009] the detector determines when air is drawn through the device based on negative pressure, the controller activates the at least one heater for the time period up to when the aerosol substrate has been depleted, reasonably suggesting that the detector is configured to detect the amount of air drawn through the air channel, while the heater is active, and after determining that the air drawn through the air channel and operation of the heater is sufficient to deplete the substrate, stop heating);
at least one aerosol generating element disposed with respect to the interface and configured, in use, to generate the aerosol from the aerosol generating material, ([0009]), and
a control circuit, ([0009]) configured
to receive a signal from the detector indicating the amount of air drawn through the air channel, ([0009] as described above), and
to control the at least one aerosol generating element in response to the detector detecting the amount of air drawn through the air channel to generate the aerosol selectively from different regions of the aerosol generating material, ([0009], [0014], [0016], [0049]-[0056] the controller may be configure to activate and deactivate the electrical heaters sequentially. The aerosol generating device may be configured to heat the aerosol generating article until one or more aerosol forming substrates on the aerosol generating article has been depleted. The controller may be configured to activate a heaters in a series of discrete activations until the one or more aerosol forming substrates have been depleted. The controller may be configured to activate a heater only when a negative pressure is applied to the aerosol generating device. The controller may be configured to continuously heat the heater for the total time period, where the total time period is equal to the tum of the time period over which the at least one heater is activated during each activation). This disclosure is considered to render obvious operation where, heat is applied to the aerosol generating substrate when the sensor detects a negative pressure condition, such that the controller activates heaters sequentially while the sensor signals the negative pressure condition exists, and the controller automatically deactivates heaters based on the corresponding air flow detected by the sensor. This is understood to meet the limitation that requires the controller (control circuit) configured to control the plurality of aerosol generating elements to activate more than one of the aerosol generating elements if the amount of air drawn by the user through the air channel detected by the detector exceeds a predetermined threshold amount, because the device of Batista operates each of the heaters based on the duration the heater is active while the sensor is detecting air drawn through the air channel, determining when the section of the aerosol generating substrate is depleted based on the time of heater activation, which is based on the time of air flow through the air channel.
Batista does not disclose detecting a magnitude of the air flow, nor does Batista disclose a reason to increase aerosol generation in response to a magnitude of the airflow.
Huang teaches an electronic device designed to generate an aerosol and simulate smoking, ([0008]), and is thus within the inventor’s field of endeavor. Huan teaches measuring airflow with a sensor and a control electronics that utilizes the measured airflow to generate vaporized substrate in proportion to the measured airflow, ([0008]-[0009], for the purpose of mimicking a traditional smoking process where a larger inhalation shall result in a heavier smoke, ([0011]).
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Batista according to the teachings of Huang. Batista discloses a device with a plurality of heaters each independently controllable, where the device is capable of detecting negative pressure within the device, activating a heater, and determining when to deactivate the heater based on how much the amount of airflow through the device, such that the aerosol generating substrate associated with the region of the heated by the heater is depleted. Batista discloses a device readily capable of generating more aerosol at one time, by activating more heaters at once, and discloses that the device is capable of activating several heaters at once, ([0016]).
Huang teaches that more aerosol should be generated when there is a larger airflow detected, for the purpose of providing a better smoking experience that more accurately simulates traditional smoking, and discloses a mass airflow meter capable of accurately detecting both duration and magnitude of airflow in the air channel.
One pf ordinary skill in the art would have found it obvious to modify Batista with the mass airflow sensor of Huang, and control the heaters of Batista to provide more aerosol based for a greater measured airflow, understood to meet the requirement of a proportional amount of aerosol generated based on airflow detected, by activating more heaters heating different areas of the aerosol generating substrate when there is a stronger inhalation and activating fewer heaters when there is a weaker inhalation, to more accurately simulate traditional smoking.
Regarding claim 42-43, modified Batista discloses the reusable part according to claim 16. Modified Batista further discloses a plurality of aerosol generating elements spatially positioned configured to generate aerosol from the different regions of the aerosol generating material, ([0052]). Modified Batista comprises a control circuit configured to generate aerosol selectively from the different regions of aerosol generating material in proportion to the amount of air drawn by the user through the air channel, (as in the rejections above, heaters heating different areas of the aerosol generating substrate activate to proportionally generate the aerosol generated based on the measured airflow), and Batista will sequentially activate and deactivate heaters based on the duration of air drawn through the channel, such that a heater where the aerosol generating substrate is depleted is deactivated, and a heater where the aerosol generating substrate remains is activated, ([0009], [0049]-[0052]). Thus, modified Batista will activate more heaters if the amount of air measured by the detector exceeds a predetermined amount, either based on a strong inhalation which would require simultaneous activation of heaters heating different areas of the substrate to generate proportional aerosol, or sequentially activating heaters based on a continuous flow of air exceeding a predetermined amount, to ensure that heaters heating depleted areas of the aerosol substrate are deactivated and heaters heating areas of the aerosol generating substrate that are not depleted are activated.
Regarding claim 44, modified Batista discloses the reusable part according to claim 42. Batista discloses that the plurality of aerosol generating elements includes a controllable heating element connected to the control circuit, ([0016] although Batista does not use the word “cell”, identical term usage is not required. Here the at least one heater may comprise a plurality of heaters, ([0014]), and the controller may activate and deactivate the heaters one at a time or in groups, reasonably disclosing that each heater comprises a “cell” understood to be an independently controllable heater that may be controlled to independently generate aerosol from a region of the aerosol generating susbtrate).
Claims 45-48 are rejected under 35 U.S.C. 103 as being unpatentable over Batista et al. (US 2017/0311647 A1), and Huang et al. (US 2016/0255878 A1) as applied to claim 44 above, and further in view of Bilat et al. (US 2018/0020735 A1).
Regarding claim 45-48 modified Batista teaches the reusable part according to claim 44. Modified Batista discloses the aerosol generating material is responsive to heat to generate the aerosol, as above. Modified Batista discloses the control circuit is configured to control the plurality of aerosol generating elements to activate a first of the plurality of heater in response to the detector detecting air being drawn through the air channel, ([0009]). Batista does not disclose at least one temperature sensor disposed with respect to the plurality of heating elements to estimate a temperature of the heater and/or the aerosol generating elements to the control circuit configured to activate a second of the plurality of heaters in response to the estimated temperature.
Bilat teaches heater management in an electrically heated aerosol generating system, ([0005]), and is thus within the inventor’s field of endeavor. Bilat teaches that the electronic circuitry may be configured to determine if there is an adverse condition during a puff, ([0008] understood to be an adverse condition during a user inhalation). Bilat teaches that one adverse condition in an aerosol generating device is insufficient or depleted aerosol forming substrate at the heater, ([0045]), further teaching that the less aerosol firming substrate at the heater, the higher the temperature of the heating element for a given applied power, ([0045]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified Batista to provide temperature sensors operatively connected to the controller, to determine the temperature at each of the heaters, for the purpose of accurately determining when the aerosol generating substrate was depleted, based on the teaching of Bilat regarding this adverse condition and the ordinary skill in the art. One of ordinary skill in the art would have found it obvious to deactivate the heater where the aerosol generating substrate was depleted based on a predetermined temperature or rise in temperature indicating that the aerosol generating substrate was depleted and activating a second heater where the aerosol substrate was not depleted, to provide aerosol generation during a user’s inhalation.
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 DANIEL E VAKILI whose telephone number is (571)272-5171. The examiner can normally be reached Monday - Friday 7:30 am - 4:30 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 at (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.
/D.E.V./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
Prosecution Insights