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 Arguments
Applicant's arguments filed 12/04/2025 have been fully considered but they are not persuasive.
Applicant argues that 35 U.S.C. 101 does not apply because the claim limitations do not include abstract ideas matching those described in MPEP 2106.04(a)(2). The examiner directs the application to MPEP 2106.04(a)(III) “Mental Processes”. Arguments concerning the amended limitation “by the processor” are addressed in the rejection below.
Applicant’s arguments with respect to claim(s) 1-13 and 16-20 have been considered but are moot because the new ground of rejection does not rely on the single reference applied in the prior rejection of record.
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) methods of organizing human activity and mental processes.
Although the instant claims have been amended to include, “by the processor”, “The courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation.” “Nor do the courts distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer.” (See MPEP 2106.04(a)(2)).
Performing a mental process on a generic computer. An example of a case identifying a mental process performed on a generic computer as an abstract idea is Voter Verified, Inc. v. Election Systems & Software, LLC, 887 F.3d 1376, 1385, 126 USPQ2d 1498, 1504 (Fed. Cir. 2018). In this case, the Federal Circuit relied upon the specification in explaining that the claimed steps of voting, verifying the vote, and submitting the vote for tabulation are "human cognitive actions" that humans have performed for hundreds of years. The claims therefore recited an abstract idea, despite the fact that the claimed voting steps were performed on a computer. 887 F.3d at 1385, 126 USPQ2d at 1504. Another example is Versata, in which the patentee claimed a system and method for determining a price of a product offered to a purchasing organization that was implemented using general purpose computer hardware. 793 F.3d at 1312-13, 1331, 115 USPQ2d at 1685, 1699. The Federal Circuit acknowledged that the claims were performed on a generic computer, but still described the claims as "directed to the abstract idea of determining a price, using organizational and product group hierarchies, in the same way that the claims in Alice were directed to the abstract idea of intermediated settlement, and the claims in Bilski were directed to the abstract idea of risk hedging." 793 F.3d at 1333; 115 USPQ2d at 1700-01.
In particular, the series of steps for reading usage data, calculating a depletion level of a consumable based on the usage date, signaling the calculated depletion level, and grouping a first number of puff records in a first session and a second number of puff records in a second session based on event records, wherein the first session and the second session are separated by a period of non-use of the aerosol generation device.
The recording, calculation, and display of remaining product is a fundamental practice and this groups as a certain method of organizing human interactions. These method steps, under their broadest reasonable interpretation cover evaluation of data, comparing to a look up table, or a calculation (see MPEP 2106.04(I)). These abstract ideas are similar to a look up table or an evaluation of use that can be done mentally on pencil and paper.
This judicial exception is not integrated into a practical application because the results of the organizing and mental process are merely displayed. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because no improvement in the art is achieved except for the information provided by the mental process and its display. The same tracking of puffs (usage data), storage of data, and calculation of depletion, and grouping of puffs, can all be accomplished manually by a user and displayed manually.
The dependent claims do not resolve the eligibility issues identified above.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 22 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 22 recites the limitation "the heater" in line 2. There is insufficient antecedent basis for this limitation in the claim.
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 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(s) 1-13 and 16-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lim (KR20190034514A) in view of Bowen et al. (US 20160157524 A1).
Regarding claim 1, Lim discloses a method of estimating and indicating a depletion level (i.e., remaining number of puffs) ([0012]) of a consumable (i.e., aerosol forming substrate) in an aerosol generation device having a processor ([0132]), a memory ([0132]) and a status indicator (i.e., LED lamp) ([0047]), the method comprising the steps of: generating and storing on the memory usage data (i.e., puff characteristic data) on a usage of the aerosol generation device by a user ([0042, 0132]) ; reading the usage data from the memory and calculating a depletion level (i.e., remaining number of possible puffs), based on the usage data ([0021, 0045]) ; and signaling (i.e., emission intensity or blinking interval of the LED lamp) the calculated depletion level of the consumable ([0046, 0047]), wherein the usage data comprises puff records (i.e., puff characteristic data) ([0009]) and event records (i.e., type of consumable) ([0028, 0029]).
Lim discloses that the method uses puff characteristic data including puff intensity, puff interval, and puff count [0032]. In other words, the invention of Lim detects individual inhale events (i.e. puffs) separated by a period of non-use (i.e. not puffs).
Lim does not disclose grouping a first plurality of puff records in a first session and a second plurality of puff records in a second session based on the event records. However, Bowen et al. disclose a similar device and calculation method that determines the dose of inhaled aerosol. Bowne et al. disclose that each puff may be considered a time period, similar to the invention of Lim, or over multiple puffs over a session and that an entire session may be the time period in which the apparatus is turned on for vaporizing the material [0022]. It would have been obvious to one of ordinary skill in the art at the time of filing/invention to combine data for multiple puffs in a time period such as when the apparatus is turned on for vaporizing, into a session in the invention of Lim, so that the total dose could be reported to a user as disclosed by Bowen et al. Doing so would provide the user with information or control of their consumption of medication [0006].
Regarding claims 2-5, Lim discloses the depletion level is calculated in response to the detection of the insertion of a consumable ([0071]), wherein the usage data comprises the number of puffs per consumable and the frequency of puffs (i.e., time interval between the first puff and the second puff) ([0071]). Furthermore, modified Lim teaches that the puff records include parameters on the airflow of puffs (i.e., puff intensity) ([0032]), and the event records include the type of consumable (i.e., solid or liquid) ([0028, 0029]).
Regarding claims 6-9, Lim discloses that the temperature of the heater is set differently depending on the type of the aerosol-generating material and the temperature of the heater varies depending on whether the aerosol-generating material is solid or liquid ([0056]). Therefore, it is clear that the method of Lim inherently includes profiles for different types of inserted consumables (i.e., aerosol-generating material). Additionally, the remaining number of puffs (i.e., depletion level) is determined based on the type of consumable inserted, as the heater delivers different temperature for each type. Lim also discloses that the processor can predict the remaining number of possible puffs (i.e., depletion level) based on the standard puff intensity and the number of puffs of the user ([0080]). Considering that the standard puff intensity and the number of puffs of the users are the puff characteristic data (i.e., usage data) collected and stored in the memory from the previous consumptions (i.e., the immediately preceding session), it is clear that the processor utilizes this stored usage data to calculate the average number of puffs (i.e., depletion level) for the current consumable ([0081]). Furthermore, Lim teaches that the depletion level is calculated or re-calculated based on usage data in response to an activation of the aerosol generation device (i.e., holder) ([0071]).
Regarding claims 10-13, Lim discloses the depletion level (i.e., remaining number of possible puffs) is calculated or re-calculated based on usage data (i.e., puff strength and puff interval) in response to a detection of a puff ([0080, 0081]), wherein the calculation or the re-calculation uses usage data on the current session ([0081]). Additionally, the processor compares the previous stored usage data (i.e., puff strength and puff interval) with the current usage data to calculate the depletion level of the consumable ([0081]). Lim further discloses the depletion level is calculated or re-calculated by calculating a depletion puff number and reducing the depletion puff number by a number of detected puffs after insertion of the consumable ([0081]), wherein the usage data is generated with the help of a puff sensor ([0078]).
Regarding claims 14 and 17, Lim discloses the depletion level is indicated to a user with a display (i.e., LED display window) ([0082]), wherein the depletion level is a remaining number of puffs on the consumable ([0082]).
Regarding claims 18-20, Lim discloses the parameters on the airflow of puffs include puff intensity (i.e., strength) ([0071]), wherein the usage data is generated with the help of an insertion sensor ([0138]), and the display is a vibrator (i.e., vibration motor) ([0046]).
Regarding claims 21, Bowen et al. disclose that the session can be a time period or the period, “…in which the apparatus is turned on for vaporizing the material, or multiple periods until reset by the user” [0022]. One of ordinary skill would interpret this disclosure as corresponding to a first activation and first deactivation because the time period is when the apparatus is turned on for vaporizing followed by an implied time when the device is turned off for vaporizing (i.e. deactivated). Subsequent sessions (i.e. second, third, etc.) would occur during each following activation followed by deactivation.
Regarding claim 22, Bowen et al. disclose preheating a vaporizable material to a present temperature [0048][0166]. It would have been obvious to one of ordinary skill in the art at the time of filing/invention that the heater for preheating would work at normal operating temperature during each session while the device was being used as disclosed by Bowen et al. It would have been obvious to one of ordinary skill that the heater would not operate while the device was turned off for vaporizing because the substance to be vaporized would not need to be prepared for vaporization.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 MICHAEL J FELTON whose telephone number is (571)272-4805. The examiner can normally be reached Monday, Thursday-Friday 7:00-4:30, Wednesday 7:00-1:00.
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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.
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/Michael J Felton/Primary Examiner, Art Unit 1747