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
This office action is in response to the Applicants Pre-appeal Brief Conference Request dated 12-29-2025.
Claims 1-6 and 19 are currently examined. Claims 7-18 are withdrawn.
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.
Claims 1-4 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Gimkiewicz (US20190008206A1) in view of Microsoft HCCB.
Regarding Claim 1, Gimkiewicz teaches an aerosol-generating consumable article comprising
at least one indicium containing coded information about the article arranged on a surface of said article (see [0032], the smoking article comprise indica on an outer surface), wherein
said coded information is implemented in at least one array of readable code elements (one- or two-dimensional barcode, [0032]) that are readable upon illumination (LEDs) by an optical magnification (lens) reader system (bar code reader, see FIG 4, see also [0055]),
configured to provide a magnification factor equal to or greater than 1 (Gimkiewicz teaches the optical reader system (e.g., [0055]-[0056], see also convex lens 44 illustrated in FIG 5. The claim is directed to a magnification factor of equal to or greater than 1, a magnification factor of 1 would be no magnification. It would be obvious to a person of ordinary skill in the art, that convex lenses such as the convex lens 44 illustrated in FIG 5 would be configured to provide a magnification factor of equal to or greater than 1 as the lens is a convex lens as shown in the figure and lenses such as convex lenses are known to be configured to provide a magnification factor of equal to or greater than 1 with a reasonable expectation of success.
Gimkiewicz teaches 2d barcodes [0032], However Gimkiewicz is silent in regards to that said readable code elements having a density of at least 10 elements (elements is being interpreted as bits of data) per square mm of said indicium. Microsoft HCCB color 2d barcode technology (see example code below) has been known in the art since 2016, and teaches that by using 8 colors, 2000 binary bytes or 16000 binary bits of data can be encoded per inch which is 24.8 bits of data (elements) per square mm. Thus 24.8 elements per square mm of said indicum falls within the claimed range of said readable code elements having a density of at least 10 elements per square mm of said indicium.
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Therefore, it would have been obvious for a person of ordinary skill in the art before the filing date of the claimed invention to modify the indicum of Gimkiewicz to have a density of 24.8 bits of data per square mm as taught by Microsoft, because both Gimkiewicz and Microsoft are directed to indicium containing coded information (2d barcodes), Gimkiewicz is silent in regards to suitable densities of data per square mm for use in a 2d barcode system and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable density of data per square mm, and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Regarding Claim 2, modified Gimkiewicz teaches the claim limitations as set forth above. Additionally, Microsoft teaches colored readable code elements (See Microsoft page 1, 8-bit color code, see example code excerpted from Microsoft above in the rejection of claim 1)
Regarding Claim 3, modified Gimkiewicz teaches the claim limitations as set forth above.
Additionally, Microsoft teaches at least three of the coloured code elements have different colours (8 different colors, See Microsoft page 1, 8-bit color code, see example code excerpted from Microsoft above in the rejection of claim 1).
Regarding Claim 4, modified Gimkiewicz teaches the claim limitations as set forth above.
Additionally, Microsoft teaches at least one portion of said indicium comprises at least eight code elements having a different colour (8 different colors, See Microsoft page 1, 8-bit color code, see example code excerpted from Microsoft above in the rejection of claim 1).
Regarding Claim 6, Modified Gimkiewicz teaches the claim limitations as set forth above.
Additionally, Gimkiewicz teaches at least a portion of said indicium comprises a waveguide. A waveguide is being interpreted with broadest reasonable interpretation as anything that restricts the natural attenuation of energy (1/R2) by altering or directing the transmission of waves (mirror and imagine lens, acting as waveguide to transmit optical signal of scanned 2d barcode back to detector, see also FIG 4 and see [0055] and [0056]).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Gimkiewicz (US20190008206A1) in view of Microsoft HCCB, as applied to claim 1 above, as evidenced by Datamatrix
Regarding Claim 2, modified Gimkiewicz teaches the claim limitations as set forth above. Additionally, Gimkiewicz teaches said readable code elements can be 2d barcodes [0032], but is silent to the structural elements inherent to 2d barcodes known in the art before the filing date of the claimed invention. For Example, Datamatrix shows evidence of structural elements of datamatrix or QR code (page 8, structure of QR code section). For example, finder patterns (a structural element) are included in the structure of the QR code as position detection patterns to allow for high-speed code reading (last paragraph of page 8).
Additionally, As set forth above, Microsoft teaches colored readable code elements (See Microsoft page 1, 8-bit color code, see example code excerpted from Microsoft above in the rejection of claim 1)
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Gimkiewicz (US20190008206A1) in view of Microsoft HCCB as applied to claim 1 above, and further in view of Sprinkel (US 4987908A)
Regarding Claim 5, modified Gimkiewicz teaches the claim limitations as set forth above. However, Gimkiewicz fails to teach at least a portion of the code elements are labile code elements.
Sprinkel teaches labile code elements used on non-combustion smoking articles (see column 2 lines 10-12) and teaches portions of code elements (thermal indicators, column 3 line 20) that are labile code elements (e.g., reveal color, lose color, change color etc, column 3 lines 14-18) are used on non-combustion smoking articles and teaches labile code elements such as temperature sensitive labile code elements cause the code element to change color when the code element is heated (column 3 lines 29-36) or that the article is finished (see claim 13).
Therefore, it would be obvious for a person of ordinary skill in the art before the filing date of the claimed invention to modify the code elements of Gimkiewicz with the labile code elements of Sprinkel in order to cause portions of the code element to change color when the code element is heated so that the user can detect if the article has been previously heated (has been used).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Gimkiewicz (US20190008206A1) in view of Microsoft HCCB and further in view of Sprinkel (US 4987908A)
Regarding Claim 19, Gimkiewicz teaches an aerosol-generating consumable article comprising
at least one indicium containing coded information about the article arranged on a surface of said article (see [0032], the smoking article comprise indica on an outer surface), wherein
said coded information is implemented in at least one array of readable code elements (one- or two-dimensional barcode, [0032]) that are readable upon illumination (LEDs) by an optical magnification (lens) reader system (bar code reader, see FIG 4, see also [0055]),
Gimkiewicz teaches 2d barcodes [0032], However Gimkiewicz is silent in regards to that said readable code elements having a density of at least 10 elements (elements is being interpreted as bits of data) per square mm of said indicium. Microsoft HCCB color 2d barcode technology (see example code below) has been known in the art since 2016, and teaches that by using 8 colors, 2000 binary bytes or 16000 binary bits of data can be encoded per inch which is 24.8 bits of data (elements) per square mm. Thus 24.8 elements per square mm of said indicum falls within the claimed range of said readable code elements having a density of at least 10 elements per square mm of said indicium.
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Therefore, it would have been obvious for a person of ordinary skill in the art before the filing date of the claimed invention to modify the indicum of Gimkiewicz to have a density of 24.8 bits of data per square mm as taught by Microsoft, because both Gimkiewicz and Microsoft are directed to indicium containing coded information (2d barcodes), Gimkiewicz is silent in regards to suitable densities of data per square mm for use in a 2d barcode system and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable density of data per square mm, and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
However, Gimkiewicz fails to teach at least a portion of the code elements are labile code elements.
Sprinkel teaches labile code elements used on non-combustion smoking articles (see column 2 lines 10-12) and teaches portions of code elements (thermal indicators, column 3 line 20) that are labile code elements (e.g., reveal color, lose color, change color etc, column 3 lines 14-18) are used on non-combustion smoking articles and teaches labile code elements such as temperature sensitive labile code elements cause the code element to change color when the code element is heated (column 3 lines 29-36) or that the article is finished (see claim 13).
Therefore, it would be obvious for a person of ordinary skill in the art before the filing date of the claimed invention to modify the code elements of Gimkiewicz with the labile code elements of Sprinkel in order to cause portions of the code element to change color when the code element is heated so that the user can detect if the article has been previously heated (has been used).
Response to Arguments
Applicants’ arguments in support of the Pre-Appeal Brief Request regarding the 35 USC 103 rejections filed 12-29-2025 specifically regarding claims 5 and 19 have been fully considered and are found persuasive. Following the decision of the Pre-Appeal conference, prosecution is reopened and the rejection of claims 5 and 19 have been withdrawn. However, a new rejection of claims 5 and 19 is set forth above in view of Gimkiewicz (US20190008206A1), Microsoft HCCB, and Sprinkel (US 4987908A).
The remaining claims are rejected in the reasons set forth in the final action mailed 7-28-2025.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael T Fulton whose telephone number is (703)756-1998. The examiner can normally be reached Monday-Friday 7:00 - 4:30 ET.
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/M.T.F./Examiner, Art Unit 1747
/RUSSELL E SPARKS/Primary Examiner, Art Unit 1755