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 .
Claim Status
Applicant’s arguments, filed on 10/27/2025, (“Remarks”) were in response to the Second Non-Final Rejection mailed on 07/28/2025 (“Second Non-Final Rejection”).
Claim(s) 4 is/are canceled.
Claim(s) 1–3 and 5–19 is/are pending. Of the pending claims, claim(s) 19 is/are currently withdrawn because they encompass other invention(s) not elected by Applicant on 09/30/2024.
Therefore, claim(s) 1–3 and 5–18 is/are addressed below.
Information Disclosure Statement
The information disclosure statement filed 10/02/2025 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered.
Response to Arguments
Drawing Objection(s)
The Second Non-Final Rejection objected to Applicant’s drawings because of various informalities.
The previous objection(s) is/are withdrawn.
Specification Objection(s)
The Second Non-Final Rejection objected to Applicant’s disclosure because of various informalities.
The previous objection(s) is/are withdrawn.
Claim Rejections - 35 USC § 101
Claim(s) 1–18 were rejected under 35 U.S.C. 101 as direct to an abstract idea without significantly more.
Applicant argues that the claims integrate any abstract idea into a practical application. Remarks at 8. In support of this position, Applicant alleges:
The claimed invention addresses the concrete technical problem that aerosol delivery devices suffer from inconsistent power delivery during the critical initial phase of aerosol generation due to voltage fluctuations in the power source, which can cause users to perceive the device as malfunctioning. (See, e.g., page 1, lines 14-18.)
Remarks at 10. Respectfully, Examiner notes that page 1, lines 14–18 of the Specification filed on 04/15/2022 (“Specification”) does not support the above position. Examiner submits that Applicant intended to cite page 12, lines 14–18. The relevant portion is reproduced below within its appropriate context:
The predetermined power output is generally selected so as to provide an initial aerosol formation and/or maximum aerosol density, for a given inhalation profile as quickly as possible. In this regard, a given inhalation profile may be a "55/3/30" puff regime, which refers to 55mL air being drawn in 3s, every 30 seconds. This inhalation profile has been recognized in the art as providing a consistent inhalation regime (see Coresta, E-Cigarette Task Force, Technical Report, 2014 Electronic Cigarette Aerosol Parameters, Updated March 2015). Maximum aerosol densitycan be determined based on the percentage transmission of light through the aerosol, and can be determined using a Spraytec Analyser from Malvern Panalytical.
In some embodiments, when air is drawn past the aerosol-generating component according to a 55/3/30 regime, the predetermined power output is based on the time to initial aerosol formation being less than 0.8s, such as less than 0.7s, such as less than 0.6s, such as less than O.5s, such as less than 0.4s.
In some embodiments, when air is drawn past the aerosol-generating component according to a 55/3/30 regime, the predetermined power output is based on the time to maximum aerosol density being less than 2s, such as less than 1.9s, such as less than 1.8s, such as less than 1.7s, such as less than 1.6s, such as less than 1.5s.
By ensuring that the predetermined power output during the first power delivery profile results in aerosol-generation in accordance with the above times to initial aerosol formation and/or maximum aerosol density, the user is provided with an improved experience since the experience of aerosol-generation is aligned with the expectations of aerosol-generation. When the predetermined power output during the first power delivery profile results in a time to initial aerosol formation and/or maximum aerosol density which is outside the above times, then the user may perceive that the device is malfunctioning or inferior since aerosol is not generated when they expected it.
Specification at 11 l. 23 through p. 12 l. 18. (underline added to highlight portion Examiner believes Applicant intended to cite). The entirety of the above is reproduced to place the solution to the perceived malfunctioning within appropriate context. As demonstrated above, it is the providing of “an initial aerosol formation and/or maximum aerosol density, for a given inhalation profile as quickly as possible” which addresses the perceived malfunctioning. This particular solution narrower than that claimed and is important when evaluating Applicant’s remaining remarks. For example, Applicant continues:
The solution integrates multiple technical elements into a practical application through a multi-profile power control architecture that requires a specific technological solution using "a first power delivery profile and a subsequent power delivery profile having a different profile" during "a single aerosol-generation event," which represents a concrete engineering approach to managing real-time power delivery rather than abstract data processing.
Remarks at 10. Examiner respectfully disagrees because Applicant’s characterization of the solution being merely to provide “‘first power delivery profile and a subsequent power delivery profile having a different profile’ during ‘a single aerosol-generation event,’” Remarks at 10, is overly broad. Applicant’s solution selects predetermined power output “so as to provide an initial aerosol formation and/or maximum aerosol density, for a given inhalation profile as quickly as possible” within a “‘55/3/30’ puff regime.” Specification at 11 ll. 23–25. Again, the particularity of the disclosed solution is not claimed.
Applicant continues:
The controller must manage "delivery of power from the power source to an aerosol-generating component" during active use, controlling "the rate at which the temperature of the heater increases from ambient to the required temperature," which involves direct control over measurable physical transformations in real-time.
Remarks at 10. Examiner notes that claim 1 does not recite controlling “the rate at which the temperature of the heater increases from ambient to the required temperature."
Applicant continues:
The specification provides empirical data demonstrating "a decrease in both time to initial aerosol formation and time to maximum aerosol density" compared to control systems, proving concrete technological advancement rather than mere abstract processing. (See, e.g., Table 1 and corresponding description). These integrated elements collectively demonstrate that the claims are directed to improving a specific technological process through defined engineering solutions that produce measurable physical effects, not merely applying abstract ideas to a generic field of use, and therefore any abstract idea is integrated into a practical application, making the claims subject matter eligible.
Remarks at 10. Respectfully, the above referenced “integrated elements” are not integrated in the claims.
Claim(s) 1–18 remain rejected under 35 U.S.C. 101 because Applicant’s amendments and remarks fail to rebut the evidence-based conclusion in the Second Non-Final Rejection that the claims are directed to an abstract idea without significantly more.
Claim Rejections - 35 USC § 112(b)
Claim 7 stands rejected under 35 U.S.C. 112 as being indefinite because the Office Action found the limitations of the claim to be inconsistent with claim 5 from which it depend.
The previous rejection to claim 7 is reproduced below:
As to claim 7, this claim recites "wherein the predetermined output of the first power delivery profile is selected so as to provide from 5 to 50% of a total energy delivered during both the first and subsequent power delivery profiles." This claim requires second profile to make up 50% or more of the total power supplied and conflicts with amended claim 5, which requires the opposite, i.e., the power of the first power delivery profile is greater than that of second profile. For the purposes of searching and throughout the remainder of this action, Examiner will assume a reference which arrives at claim 5 also arrives at claim 7.
Second Non-Final Rejection at 14. In response to the above, Applicant states:
Claim 5 recites that "the predetermined power or average power of the fist power delivery profile is greater than the power or average power output of the subsequent power delivery profile," whereas claim 7 recites "the predetermined output of the first power delivery profile is selected so as to provide from 5% to 50% of a total energy delivered during both the first and subsequent power delivery profiles." Claim 5 therefore relates to a comparison of powers as between the two phases and claim 7 refers to energy. Given that power is the rate at which energy is transferred, it is possible to have a higher power for a short period of time which ultimately provides a smaller amount of the total energy. Applicant therefore respectfully submits that that these claims are not in contradiction with each other. It is therefore respectfully requested that this rejection be withdrawn.
Remarks at 9. Respectfully, even if it is possible to have a higher power for a short period of time which ultimately provides a smaller amount of the total energy, the breadth of claim 7 still captures a second profile making up 50% or more of the total power supplied, which conflicts with claim 5’s requirement that the power of the first power delivery profile is greater than that of second profile. For the purposes of searching and throughout the remainder of this action, Examiner will assume a reference which arrives at claim 5 also arrives at claim 7.
Claim Rejections - 35 USC § 102
Claim(s) 1–5, 7–8, 10–12, 14, and 16–18 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by AMPOLINI US 20140270727 (of record) (“Ampolini”).
Applicant’s Remarks on pages 9–11 have been fully considered, but are not persuasive for the reasons set out in the following paragraphs.
Applicant states:
The majority of the Office Action's arguments appear to be because the Office Action is using a "broadest reasonable interpretation" of "wherein the first power delivery profile has a predetermined output based on the voltage of the power source" meaning that Ampolini's disclosure of compensation for fluctuations in power source voltage would fall within such an interpretation. Particularly, the Office Action appears to be applying such an interpretation because it alleges that some embodiments in the specification describe "based on" in ways that differ from the claimed scope, and which are consistent with Ampolini.
Remarks at 10. Respectfully, the Second Non-Final Rejection applied such an interpretation because the interpretation was consistent with Applicant’s Clean Specification filed on 04/15/2022 (“Clean Specification”). See Second Non-Final Rejection at 3 (explaining that Applicant’s previous Remarks were “not persuasive because [Applicant’s interpretation was] inconsistent with the broadest reasonable interpretation of ‘wherein the first power delivery profile has a predetermined output based on the voltage of the power source’ when read in light of Applicant’s Clean Specification.”). (annotation added)
Applicant continues:
Applicant respectfully submits that the Office Action has improperly conflated a 112 analysis with the 102/103 analysis. In an anticipation analysis, the inquiry must focus solely on what Ampolini discloses in isolation - the Office Action cannot use the applicant's own supporting embodiments as evidence of what the prior art teaches. When Ampolini is properly evaluated without reference to the applicant's specification, the semantic distinction between Ampolini's "compensation for voltage fluctuations" and the claimed power "predetermined based on voltage" becomes legally significant and dispositive. Ampolini must be analyzed only for what the reference itself discloses without using the Applicant's own specification to determine what the reference teaches. On this basis alone, Applicant believes the rejections should be withdrawn.
Remarks at 10. Respectfully, the Second Non-Final Rejection did not improperly conflate a 112 analysis with a 102/103 analysis. With respect to Applicant’s statement of “[i]n an anticipation analysis, the inquiry must focus solely on what Ampolini discloses in isolation - the Office Action cannot use the applicant's own supporting embodiments as evidence of what the prior art teaches,” Remarks at 10, respectfully, this position appears to mischaracterize the explanation provided in the Second Non-Final Rejection. The Second Non-Final Rejection did not “use the applicant's own supporting embodiments as evidence of what the prior art teaches.” Instead, the Second Non-Final Rejection correctly ascertained the broadest reasonable interpretation of the limitations at issue by turning to Applicant’s Clean Specification. See MPEP § 2103(C) (“Examiners should then correlate each claim limitation to all portions of the disclosure that describe the claim limitation . . . regardless of whether the claimed invention is defined using [functional language that typically invokes more narrow interpretations under 35 U.S.C. § 112(f)]. The correlation step will ensure that examiners correctly interpret each claim limitation in light of the specification.”), and see also Second Non-Final Rejection at 5–6 (explaining how
Ampolini evidenced anticipation of the broadest reasonable interpretation of the limitations at issue when read in light of the Clean Specification.)
Regarding the previous application of Ampolini to claim 4 (now incorporated into claim 1), Applicant states:
Paragraph [0105] of Ampolini states that upon initiation of a puff by a user, the controller 360/processor 370 may be configured to set an output power target to a configured and specified set point (i.e., a default value hard-coded into the software). Alternatively, paragraph [0106] states that the programmable parameter values may replace the "standard" hard-coded default set point/set point profile. Paragraph [0074] refers to an algorithm that automatically compensates for fluctuations and decay in power source (i.e., battery) voltage and/or inconsistencies in the resistance determined at the heating component 320, to maintain the specified or otherwise desired power delivery to the heating component throughout the heating time period.
The Office Action appears to take the position that the applied algorithm means that the first power delivery profile has a predetermined output (be it the hard-coded default set point/set point profile, or programmable parameter) that is based on the voltage of the power supply, because of Ampolini's disclosure that the power supplied may adjusted based on the voltage of the power supply such that it compensates for voltage fluctuations.
Applicant respectfully submits that this cannot be considered a predetermined power output based on the voltage of the power supply. For a power output to be predetermined, the power output must be determined prior to the start of the aerosol generation event, i.e., the specific amount of power to be delivered is determined and set prior to the user initiating a puff. This is a limitation of the claim, as claim 1 refers to the control of "delivery of power... during a single aerosol-generation event according to a first delivery profile". Therefore, one skilled in the art would understand that any reference to a "predetermined power output" of the first power delivery profile requires the amount of power to be predetermined based on a voltage of the power supply prior to the aerosol generation event. Adjusting the instantaneous power supply based on the voltage of the power supply to compensate for voltage fluctuations during the aerosol generating event cannot therefore be considered a predetermined power output, because it has not been determined prior to the onset of the event.
Remarks at 11. (bold in original) Respectfully, Applicant’s characterization of “[f]or a power output to be predetermined, the power output must be determined prior to the start of the aerosol generation event, i.e., the specific amount of power to be delivered is determined and set prior to the user initiating a puff,” Remarks at 11, is an overly narrow interpretation of the limitation at issue. (annotation added) However, even if “predetermined” was limited to being “determined prior to the start of the aerosol generation event,” Ampolini discloses “programmable parameter values in the cartridge unit, when read by the power/control unit may completely replace the ‘standard’ hard-coded default set point/set point profile. Further, additional/replacement offsets of these set points may then be applied instead, if so indicated by the cartridge unit.” Id. at [0106]. These replacement parameter values are predetermined because they are associated with the particular cartridge unit and are intended/planned/predetermined to replace the standard hard-coded default set point/set point profile. Accordingly, AMPOLINI continues to anticipate claim 1 as amended.
Therefore, the above referenced rejection(s) under 35 U.S.C. 102(a)(1) in the Second Non-Final Rejection is/are maintained.
Claim Rejections - 35 USC § 103
Claim(s) 15 was rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over AMPOLINI US 20140270727 (of record). Claim(s) 6 and 9 were rejected under 35 U.S.C. 103 as being unpatentable over AMPOLINI US 20140270727 (of record). Claim(s) 13 was rejected under 35 U.S.C. 103 as being unpatentable over AMPOLINI US 20140270727 (of record) and the teachings of DEEVI US 5224498 incorporated by reference into AMPOLINI US .
Applicant’s Remarks on page 13 have been fully considered, but are not persuasive for the reasons set out above.
Therefore, the above referenced rejection(s) under 35 U.S.C. 103 in the Second Non-Final Rejection is/are maintained.
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 1–3 and 4–18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 2A, Prong 1: Does claim 1 recite an abstract idea, law of nature, or natural phenomenon? Yes. The claim 1’s recitation of “the first power delivery profile has a predetermined output based on the voltage of the power source” and “wherein the predetermined output of the first power delivery profile is a predetermined power or average power of the first power delivery profile” are controller recitations that, under their broadest reasonable interpretation, covers evaluation of data or a calculation. The first power delivery profile being “based on” a result of the voltage of the power source is an abstract idea similar to a look up table or an evaluation that is taking place which can be done mentally. See Drawings, Fig. 4B (illustrating mapping from the measured voltage output level to duty cycle of the heater), see also Clean Specification, p. 18, ll. 5–21 (discussing the same).
Therefore, Step 2A, Prong 1 is satisfied because claim 1 recites an abstract idea of evaluation of data or calculation.
Step 2A, Prong 2: Does the claim recite additional elements that integrate the judicial exception into a practical application? No. This judicial exception is not integrated into a practical application because the remaining limitations in claim 1 generally link the use of the abstract ideas to a particular technological environment or amount to “apply it.” In addition to the abstract idea, claim 1 recites “an aerosol delivery device” and “a power source and a controller.” However, the claimed “aerosol delivery device” and “a power source and a controller” do not meaningfully limit abstract idea to a particular machine but merely indicate a field of use. See MPEP 2106.05(h) (explaining “limitations that amount to merely indicating a field of use or technological environment in which to apply a judicial exception do not amount to significantly more than the exception itself, and cannot integrate a judicial exception into a practical application.”). Claim 1 also recites “the controller being configured to control delivery of power from the power source to an aerosol-generating component aerosol-generator during a single aerosol-generation event according to a first power delivery profile and a subsequent power delivery profile having a different profile to the first power delivery profile;” however, this amounts to mere instructions to apply the abstract idea. See MPEP 2106.05(f)(1) (explaining “limitations that attempt to cover any solution to an identified problem with no restriction on how the result is accomplished and no description of the mechanism for accomplishing the result, does not integrate a judicial exception into a practical application or provide significantly more because this type of recitation is equivalent to the words ‘apply it.’”).
Therefore, Step 2A, Prong 2 is satisfied because claim 1 fails to recite additional elements that integrate the judicial exception into a practical application.
Step 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception? No, claim 1 does not does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional recitations of “an aerosol delivery device,” “a power source and a controller,” do not meaningfully limit abstract idea to a particular machine but merely indicate a field of use. See MPEP 2106.05(h). Applicant’s Clean Specification evidences that these structures do not amount to significantly more. See Specification, p. 2, ll. 20–24 (evidencing these structures are present in “many aerosol deliver systems”) and p. 3, ll. 7–18 (explaining controller configurations with two delivery profiles are used in “most aerosol delivery systems”). The controller limitations implementing the power delivery profiles amount to no more than mere instruction to apply the exception to the generic aerosol delivery device. MPEP 2106.05(f)(1).
The dependent claims do not solve the issues with claim 1. For example, claims 11–13’s heater, and claims 16–18 do not amount to beyond what is well understood routine and conventional within the art (WURC) or generally link the use of the judicial exception to a particular technological environment or field of use. For example, claims 11–12 are disclosed by AMPOLINI US 20140270727 at [0042–60] and Claim 13’s resistance is disclosed by DEEVI US 5224498 (Col. 5, ll. 23–29). Claims 16–18 are also disclosed by AMPOLINI (Fig. 1, 200; [0063]). The additional limitations in claims 2–10 and 14–15 either recite additional calculation steps/mental processes only a result-oriented solution and lack details as to how the controller/CPU performed the modifications, which was equivalent to the words "apply it". MPEP 2106.05(f)(1).
Therefore, the Step 2B is satisfied because the claims do not recite additional elements that amount to significantly more than the judicial exception.
Accordingly, claims 1–3 and 5–18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
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.
Claims 7–9 and 14–15 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.
As to claim 7, this claim recites “wherein the predetermined output of the first power delivery profile is selected so as to provide from 5 to 50% of a total energy delivered during both the first and subsequent power delivery profiles.” This claim requires second profile to make up 50% or more of the total power supplied and conflicts with amended claim 5, which requires the opposite, i.e., the power of the first power delivery profile is greater than that of second profile.
For the purposes of searching and throughout the remainder of this action, Examiner will assume a reference which arrives at claim 5 also arrives at claim 7.
As to claims 8 and 14–15, are indefinite in view of the amendments to claim 1 which was amended to bring in the limitations from claim 4 (claims 8 and 14–15 never depended on claim 4) and now recites “wherein the predetermined output of the first power delivery profile is a predetermined power or average power of the first power delivery profile.” Accordingly, one of ordinary skill in the art is unable to ascertain how claim 8’s recitation of “wherein the predetermined output is a predetermined energy” further narrows the scope of claim 1 now that claim 1 defines the predetermined output of the first power delivery profile as “a predetermined power or average power of the first power delivery profile.” Similarly, one ordinary skill in the art is unable to ascertain how claim 14’s recitation of “wherein the predetermined output of the first power delivery profile is determined based on a time to initial aerosol formation being less than 0.8s” or claim 15’s “wherein the predetermined output of the first power delivery profile is determined based on a time to maximum aerosol density being less than 2s” further narrow the scope of claim 1 now that claim 1 defines the predetermined output of the first power delivery profile as “a predetermined power or average power of the first power delivery profile.”
Claim 9 is rejected for the same reasons via its dependency on claim 8.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1–3, 5, 7–8, 10–12, 14, and 16–18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by AMPOLINI US 20140270727 (of record).
As to claim 1, AMPOLINI discloses an aerosol delivery device (Fig. 1, 100) comprising a power source (340; [0063]) and a controller (360/370; [0073–74]), the controller being configured to control delivery of power from the power source to an aerosol-generating component (Fig. 3, 140) during a single aerosol-generation event ([0065–66]).
AMPOLINI further discloses:
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Upon initiation of a puff by a user, the controller 360/processor 370 may be configured to set an output power target to a configured and specified set point. Prior to actuating the heating component, the controller 360/processor 370 may be configured to read several key parameters from the processor/memory of the cartridge unit and compare these parameters to the default parameters associated with the controller 360/processor 370. For example, three parameters may be read from the processor/memory of the cartridge unit, while the corresponding programmed default values for these parameters may be zero (0). As such, if a corresponding zero (0) is read by the controller 360/processor 370 for a parameter, the net result is that the particular cartridge unit does not require a corresponding parameter of the set point to change (i.e., “no change”). It follows that if any of the three parameters is other than zero (0), the heating component set point/set point profile for current/power is changed accordingly.
In one aspect, the programmable parameter values in the cartridge unit, when read by the power/control unit may completely replace the “standard” hard-coded default set point/set point profile. Further, additional/replacement offsets of these set points may then be applied instead, if so indicated by the cartridge unit. For example, in some instances, the programmable set of parameter values may divide a puff into 10 time-based segments, wherein each segment can have one of four different power set point offsets with respect to the default parameter for that time segment. … Using these time segments, a custom current/power profile for the heating component can be configured over the duration of the puff, as shown… in FIG. 9. … FIG. 9 schematically illustrates three examples of such customized current/power profiles for the heating component.
Paras. [0105–106] (emphasis added).
AMPOLINI further discloses wherein the predetermined output of the first power delivery profile is a predetermined power or average power (end of [0106]).
Therefore, one of ordinary skill in the art understands AMPOLINI discloses the controller being configured to control delivery of power from the power source to an aerosol-generating component during a single aerosol-generation event according to a first power delivery profile (the highest segment in “10-segment Puff Profile Offset” graph, as discussed in [0106]) and a subsequent power delivery profile having a different profile to the first power delivery profile (those segments to the right of highest segment in this same graph, as discussed in [0106]), wherein the first power delivery profile has a predetermined output based on the voltage of the power supply (Fig. 2, [0074], 1st-3rd sentences; [0103]’s “algorithm may, for example, automatically compensate for fluctuations and decay in power source (i.e., battery) voltage” and generally [0105–106]), wherein the predetermined output of the first power delivery profile is a predetermined power or average power (end of [0106]).
As to claim 2, AMPOLINI discloses the aerosol delivery device of claim 1, wherein the subsequent power delivery profile has a predetermined output ([0106]).
As to claim 3, AMPOLINI discloses the aerosol delivery device of claim 2, wherein the predetermined output of the first power delivery profile (the highest segment in “10-segment Puff Profile Offset” in Fig. 9, as discussed in [0106]) is greater than the predetermined output of the subsequent power delivery profile (some segments to the right of highest segment in Fig. 9, as discussed in [0106]).
As to claim 5, AMPOLINI discloses the aerosol delivery device of claim 1, wherein the predetermined power or average power of the first power delivery profile the highest segment in “10-segment Puff Profile Offset” in Fig. 9, as discussed in [0106]) is greater than that of the subsequent power delivery profile (the last right segment in Fig. 9, as discussed in [0106]).
As to claim 7, AMPOLINI discloses the aerosol delivery device of claim 5. Accordingly, AMPOLINI is considered to arrive at this conflicting and indefinite claim limitation. See claim interpretation under above Claim Rejections - 35 USC § 112.
As to claim 8, AMPOLINI discloses the aerosol delivery device of claim 1, wherein the predetermined output is a predetermined energy ([0106] discussing power).
As to claim 10, AMPOLINI discloses the aerosol delivery device of claim 1, wherein the first power delivery profile is delivered for between 100ms and 900ms ([0113] “power to the heating component may be "kick-started" by the first segment for a quarter second”).
As to claim 11, AMPOLINI discloses the aerosol delivery device of claim 1, wherein the aerosol- generating component comprises a heater ([0059–60]).
As to claim 12, AMPOLINI discloses the aerosol delivery device of claim 11, wherein the heater is formed from an electrically resistive material ([0042]–[0060]).
As to claim 14, AMPOLINI discloses the aerosol delivery device of claim 1, wherein the predetermined output of the first power delivery profile is determined based on a time to initial aerosol formation being less than 0.8s ([0113]).
As to claim 16, AMPOLINI discloses an aerosol delivery system comprising the aerosol delivery device of claim 1, and further comprising an aerosol-generating component (320) and an article containing aerosolizable material (Fig. 1, 200, [0063]).
As to claim 17, AMPOLINI discloses the aerosol delivery system of claim 16, wherein the aerosol-generating component forms part of the article (Fig. 1, [0063]).
As to claim 18, AMPOLINI discloses the aerosol delivery system of claim 16, wherein the aerosol-generating component forms part of the aerosol delivery device (Fig. 1).
Claim Rejections - 35 USC § 102/103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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.
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) 15 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over AMPOLINI US 20140270727 (of record).
As to claim 15, AMPOLINI discloses the aerosol delivery device of claim 1.
The recitation of “wherein the predetermined output of the first power delivery profile is determined based on a time to maximum aerosol density being less than 2s” is being interpreted akin to an intended use limitation. (MPEP 2115). The rejection of claim 1 establishes a controller with a predetermined output of the first power delivery profile (Fig. 2, [0074], 1st-3rd sentences; [0103]’s “algorithm may, for example, automatically compensate for fluctuations and decay in power source (i.e., battery) voltage” and generally [0105–106]).
By arriving at the same structure, AMPOLINI is considered to anticipate claim 15. That is, even if the structure referenced above is silent to the intent/determination/desire of the programmer, one of ordinary skill in the art understands that the structure anticipates claim 15 because the profile disclosed would overlap with another profile which was actually/intentionally determined and based on a time to maximum aerosol density being less than 2s. Restated again, one of the disclosed programs would result in a time to maximum aerosol density being less than 2s for any number of e-juice liquids, the same liquid disclosed by the applicant but at less concentration or the cartridge being at the end of its life.
Therefore, AMPOLINI anticipates claim 15.
Alternatively or additionally, AMPOLINI teaches delivering power based on a determination of a two second puff (AMPOLINI at [0059] “the amount of heat generated can be measured in relation to a two second puff providing”).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate these teachings of AMPOLINI into the disclosure referenced above for the benefit of for the benefit of providing an amount of heat necessary to generate a defined volume of aerosol (as taught by AMPOLINI at [0059]) according to a heating profile that is programmable by the user of the electronic smoking article, the manufacturer, or automatically according to the type or identity of the detected cartridge unit (as taught by AMPOLINI at [0107]).
The obvious arrangement above would arrive the predetermined output of the first power delivery profile is determined based on a time to maximum aerosol density being less than 2s. Additionally, the obvious arrangement above would arrive at a structure which overlaps in scope with a controller configuration that was specifically designed based a time to maximum aerosol density being less than 2s for a particular volatile.
Claim(s) 6 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over AMPOLINI US 20140270727 (of record).
As to claims 6, AMPOLINI discloses the aerosol delivery device of claim 5.
ARMPOLINI but fails to explicitly disclose wherein the predetermined power or average power of the first power delivery profile is from about 0.5 to 5W greater than the power or average power of the subsequent power delivery profile.
AMPOLINI’s [0059] teaches delivering power from about 1 to about 50 Joules of heat per second (J/s), about 2 J/s to about 40 J/s, about 3 J/s to about 35 J/s, or about 5 J/s to about 30 J/s. (note: 1 W =1 J/s) and delivering power at different intensities over time (Fig. 9; [0106–0112]).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to modify AMPOLINI with the two teachings above and arrive at wherein the predetermined power or average power of the first power delivery profile is from about 0.5 to 5W greater than the power or average power of the subsequent power delivery profile (as taught by AMPOLINI at [0059]) according to a heating profile that is programmable by the user of the electronic smoking article, the manufacturer, or automatically according to the type or identity of the detected cartridge unit (as taught by AMPOLINI at [0107]).
AMPOLINI also teaches “the heating member may be energized for a duration of about 0.2 second to about 5.0 seconds, about 0.3 second to about 4.5 seconds, about 0.5 second to about 4.0 seconds, about 0.5 second to about 3.5 seconds, or about 0.6 second to about 3.0 seconds” ([0037]), but later limits the range of a single puff to being less than 4 seconds ([0108]).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the AMPOLINI’s puff duration into the combination above for the benefit of maintain the heating element within the desired temperature range for the length of time required to release the desired dosing of inhalable substances (as taught by AMPOLINI at [0037]).
Accordingly, AMPOLINI makes obvious supplying 1 to 50 J/s over length of time from .2 J/s to 4 J/s (note: 1 W =1 J/s)—this includes 10 J/s over 4 seconds or a total power output of 40 W over a single puff. (as taught by AMPOLINI at [0059]).
Fig. 9 allows one of ordinary skill in the art to ascertain the ratio of the first energy profile to subsequent energy profiles when 10 J/s over 4 seconds or a total power output of 40 W is applied over a single puff. Please see below:
Reproduction from Fig. 9. (annotation added).
Thus:
First power delivery profile 6/27 of total power:
(6/27)*40 W = 8.9 W.
Exemplary subsequent power delivery profile(s)=
(4/27)*40 W= 5.92 W; or
(3/27)*40 W= 4.44 W.
Accordingly, AMPOLINI makes obvious wherein the predetermined power or average power of the first power delivery profile is from about 0.5 to 5W greater than the power or average power of the subsequent power delivery profile. (MPEP 2144.05 claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.).
As to claim 9, AMPOLINI discloses the aerosol delivery device of claim 8.
ARMPOLINI but fails to explicitly disclose wherein the predetermined energy of the first power delivery profile is from 12J to 1J.
AMPOLINI’s [0059] teaches delivering power from about 1 to about 50 Joules of heat per second (J/s), about 2 J/s to about 40 J/s, about 3 J/s to about 35 J/s, or about 5 J/s to about 30 J/s. (note: 1 W =1 J/s) and delivering power at different intensities over time (Fig. 9; [0106–0112]).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to modify AMPOLINI with the two teachings above and arrive at wherein the predetermined power or average power of the first power delivery profile is from about 0.5 to 5W greater than the power or average power of the subsequent power delivery profile (as taught by AMPOLINI at [0059]) according to a heating profile that is programmable by the user of the electronic smoking article, the manufacturer, or automatically according to the type or identity of the detected cartridge unit (as taught by AMPOLINI at [0107]).
AMPOLINI also teaches “the heating member may be energized for a duration of about 0.2 second to about 5.0 seconds, about 0.3 second to about 4.5 seconds, about 0.5 second to about 4.0 seconds, about 0.5 second to about 3.5 seconds, or about 0.6 second to about 3.0 seconds” ([0037]), but later limits the range of a single puff to being less than 4 seconds ([0108]).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the AMPOLINI’s puff duration into the combination above for the benefit of maintain the heating element within the desired temperature range for the length of time required to release the desired dosing of inhalable substances (as taught by AMPOLINI at [0037]).
Accordingly, AMPOLINI makes obvious supplying 1 to 50 J/s over length of time from .2 J/s to 4 J/s (note: 1 W =1 J/s)—this includes 10 J/s over 4 seconds or a total power output of 40 W over a single puff. (as taught by AMPOLINI at [0059]).
Fig. 9 allows one of ordinary skill in the art to ascertain the ratio of the first energy profile to subsequent energy profiles when 10 J/s over 4 seconds or a total power output of 40 W is applied over a single puff. Please see below:
Reproduction from Fig. 9. (annotation added).
Thus:
First power delivery profile 6/27 of total power:
(6/27)*40 W = 8.9 W.
This 8.8 W of the first power delivery profile prorated (2 columns out of total of 9 columns in the above annotation of Fig. 9) over the assumed 4 second puff makes obvious a predetermined energy of the first power profile is 2 J/s—arriving at the predetermined energy of the first power delivery profile is from 12 to 1 J.(MPEP 2144.05 claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.).
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over AMPOLINI US 20140270727 (of record) and the teachings of DEEVI US 5224498 incorporated by reference into AMPOLINI .
As to claim 13, AMPOLINI discloses the aerosol delivery device of claim 12.
AMPOLINI fails to disclose wherein the electrically resistive material has a resistance of from 0.1 to 2 Ohms.
AMPOLINI teaches and incorporates by reference many heaters and heating materials with electrically resistive materials ([0042]). One disclosure incorporated into AMPOLINI is that of DEEVI (AMPOLINI [0042] “Materials that can be useful for providing resistive heating are described in . . . U.S. Pat. No. 5,224,498 . . .the disclosure[] of which [is] incorporated herein by reference in [its] entiret[y].”).
DEEVI discloses using an electrically resistive material with a resistance preferably between 0.8 and 1.2 ohms (5:23–29).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the teachings of DEEVI into the disclosure of AMPOLINI arriving at wherein the electrically resistive material has a resistance of from 0.1 to 2 Ohms for the benefit of producing an aerosol (as taught by AMPOLINI at [0042] and DEEVI at 5:9–45). . (MPEP 2144.05 claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.)
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.
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/MANLEY L CUMMINS IV/Primary Examiner, Art Unit 1747