DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
Status of the Claims
Claims 1-7 and 9-15 are pending. Claims 12-15 are withdrawn. Claims 1 and 9 have been amended.
Response to Amendments
The Examiner acknowledges Applicant's responses filed on 3/23/2026 containing remarks to the claims and on 4/9/2026 containing amendments and remarks to the claims.
Response to Arguments
Applicant's arguments filed 3/23/2026 have been fully considered but they are not persuasive.
Applicant argues that “Batista does not disclose that the device is operated when the windows are uncovered”. This argument is not persuasive as Batista states that “Ambient light may be received . . . via one or more windows . . . . [t]he ambient light source may function to supplement the light source of the aerosol-generating device” which may “reduce the amount of power required by the aerosol-generating device”. As such, Batista discloses that the device may be operated when the windows are uncovered.
Applicant further argues that “Batista does not disclose turning on or turning off the aerosol-generating apparatus based on whether the windows are uncovered.” This argument is not persuasive as Batista is not relied upon for disclosing turning on or turning off the aerosol-generating apparatus based on whether the windows are uncovered, as these limitations are taught by the obvious combination of Batista in view of Skoda and Rogan. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant further argues that ¶ 0027 of Batista discloses using ambient light from the windows to pre-heat the aerosol-forming substrate “prior to operating” the internal light source and that “[c]learly, in Batista, covering or uncovering of the windows by itself does not cause the device to be activated or deactivated.” This argument is not persuasive as the “pre-heating” step may be considered part of the operating the aerosol-generating device. Further, Batista is not relied upon for disclosing covering or uncovering the windows to cause the device to activate or deactivate, as these limitations are taught by the obvious combination of Batista in view of Skoda and Rogan. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant further argues that “Batista fails to disclose or suggest the technical concept of controlling device activation based on the specific position of the movable cover member relative to the housing.” This argument is not persuasive as Batista is not relied upon for disclosing controlling device activation based on the specific position of the movable cover member relative to the housing, as this limitation is taught by the obvious combination of Batista in view of Skoda and Rogan. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant further argues that the “sliding cover in Rogan is specifically designed to block or unblock an aperture for inserting a capsule” and that “combining Batista with Rogan does not lead to the claimed feature of a cover member that controls light flow through a window.” This argument is not persuasive as Rogan is not relied upon for disclosing a cover member that controls light flow through a window, as Batista discloses this feature (see rejections below). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant further argues that “Rogan discloses that the device is activated when the sliding cover is in a closed position.” This argument is not persuasive as Rogan is not relied upon for disclosing the specific position of the cover needed to activate the device. Instead, Rogan discloses that the position of the cover may be used to activate the device, and Batista discloses that the device may be activated when the cover is open. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-2, 4-6, and 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Batista et al. (US 2020/0367570 A1) in view of Skoda (US 2019/0231992 A1) and Rogan et al. (US 2020/0337377 A1).
Regarding claim 1, Batista discloses an aerosol-generating apparatus (“aerosol-generating system 10”, Fig. 1, ¶ 0113) comprising:
a housing (“housing 12”, ¶ 0123) comprising at least one light-transmitting window (“a window is positioned on the housing”, ¶ 0052) configured to transmit external light to an inside of the aerosol-generating apparatus (“a window may facilitate the transmission of light from an external light source to the plasmonic heating element”, ¶ 0052);
a cover member coupled to the housing (“a releasable cap for covering one or more windows or openings in the device”, ¶ 0027) such that the cover member is movable between a first position and a second position (“releasable”, ¶ 0027);
a heating element (“heater assembly 30”, Fig. 1, ¶ 0115) comprising a plurality of nanoparticles (“plurality of metallic nanoparticles”, ¶ 0115) configured to generate heat in response to light through Surface Plasmon Resonance (SPR) (“The plasmonic heating element generates heat by surface plasmon resonance (SPR)”, ¶ 0115);
a light source (“light source 40”, Fig. 1, ¶ 0115) arranged inside the housing and configured to emit light toward the heating element (¶ 0115); and
a processor (“controller 14”, Fig. 1, ¶ 0116) configured to adjust a quantity of light emitted by the light source and received by the heating element by controlling the light source based on an amount of external light transmitted to the inside of the aerosol-generating apparatus (“The ambient light source may function to supplement the light source of the aerosol-generating device . . . . This may also advantageously reduce the amount of power required by the aerosol-generating device”, ¶ 0027),
wherein the at least one light-transmitting window is covered by the cover member when the cover member is at the first position (“covering one or more windows”, ¶ 0027), and the at least one light-transmitting window is exposed to the outside of the aerosol-generating apparatus when the cover member is at the second position (“Ambient light may be received into the aerosol-generating device via one or more windows or openings on the external surface of the aerosol-generating device”, ¶ 0027).
However, Batista does not explicitly disclose a sensor configured to detect a quantity of the external light transmitted to the inside of the aerosol-generating apparatus through the at least one light-transmitting window.
Skoda, in the same field of endeavor, discloses using a light-quantity measurement sensor (“ambient light sensors”, ¶ 0064) in an aerosol-generating apparatus (“vaporizer device 105”, ¶ 0023, 0064). Skoda also teaches that the light-quantity measurement sensor is configured to detect a quantity of external light (“ambient light”, ¶ 0064). One of ordinary skill in the art would have understood that there was a benefit to using a light-quantity measurement sensor configured to detect a quantity of external light in that the processor could determine the precise amount of external light transmitted to the aerosol-generating apparatus via the sensor and, thereby, allow for more precise control over the aerosol-generating apparatus. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have incorporated a light-quantity measurement sensor configured to detect a quantity of external light, as taught by Skoda, to determine the amount of external light transmitted to the inside of the aerosol-generating apparatus through the at least one light-transmitting window, as taught by Batista, in order to obtain this benefit.
Batista does not explicitly disclose that the cover is moveable in a lengthwise direction of the housing.
Rogan, in the same field of endeavor, teaches an aerosol-generating apparatus (“electronic cigarette 10”, Figs. 1-2, ¶ 0066) comprising a cover member (“slidable cover 18”, Figs. 1-2, ¶ 0068) coupled to a housing (“housing 12”, Figs. 1-2, ¶ 0068) such that the cover member is moveable in a lengthwise direction (“slid in the longitudinal, or axial, direction”, Figs. 1-2, ¶ 0068) of the housing between a first position (“open position”, Fig. 2, ¶ 0068) and a second position (“closed position”, Fig. 1, ¶ 0068).
One of ordinary skill in the art would have understood that releasable caps and sliding covers are interchangeable cover members that are capable of performing the same function of covering and uncovering an opening or aperture. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have substituted the cover member taught by Rogan in place of the cover member taught by Batista (see MPEP § 2143(I)(B)).
Batista does not disclose wherein the processor is configured to turn on the aerosol-generating apparatus based on the at least one light-transmitting window being exposed to an outside of the aerosol-generating apparatus, and turn off the aerosol-generating apparatus based on the at least one light-transmitting window being covered by the cover member.
Rogan further teaches a processor (“controller 48”, ¶ 0088) configured to, based off detection of movement of the cover member by a movement detection sensor (“a sensor structure 49 configured to detect whether the slidable cover 18 is in the open or in the closed position”, ¶ 0083):
turn on the aerosol-generating apparatus based on movement of the cover member from the first position to the second position (“activate the electronic cigarette 10, preferably at least the vaporizer structure 24, when (and, optionally, only when) the signal 71 indicates that the slidable cover 18 is in the closed position”, ¶ 0088); and
turn off the aerosol-generating apparatus based on movement of the cover member from the second position to the first position (“deactivate the electronic cigarette 10, preferably at least the vaporizer structure 24, when (and, optionally, only when) the signal 71 indicates that the slidable cover 18 is in the open position”, ¶ 0088).
One of ordinary skill in the art would have understood that there was a benefit to configuring the processor to: turn on the aerosol-generating apparatus when movement of the cover member from the first position to the second position is detected; and turn off the aerosol-generating apparatus when movement of the cover member from the second position to the first position is detected, in that the user can efficiently move the cover member and turn the apparatus on or off in a single step. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have included a movement detection sensor configured to detect movement of the cover member, as taught by Rogan, in the apparatus taught by Batista, wherein the processor is configured to: turn on the aerosol-generating apparatus when movement of the cover member from the first position to the second position is detected (i.e., when the at least one light-transmitting window is exposed to an outside of the aerosol-generating apparatus); and turn off the aerosol-generating apparatus when movement of the cover member from the second position to the first position is detected (i.e., when the at least one light-transmitting window is covered by the cover member), in order to achieve this benefit.
Regarding claim 2, Batista in view of Skoda and Rogan discloses the aerosol-generating apparatus of claim 1, as stated above. Batista further discloses wherein the housing further comprises a discharge path (path through “air outlet 52”, Fig. 1, ¶ 0114) through which an aerosol (“aerosol”, ¶ 0114) is discharged out of the aerosol-generating apparatus.
Regarding claim 4, Batista in view of Skoda and Rogan discloses the aerosol-generating apparatus of claim 1, as stated above. Batista discloses wherein the sensor comprises a temperature sensor (“temperature sensor”, ¶ 0131) configured to detect the temperature of the heating element (¶ 0131).
Regarding claim 5, Batista in view of Skoda and Rogan discloses the aerosol-generating apparatus of claim 4, as stated above. Batista further discloses wherein the processor is configured to:
calculate a difference (“the controller determines that a temperature adjustment is required”, ¶ 0142) between a temperature of a designated temperature profile (“consistent operating temperature”, ¶ 0142) and the detected temperature of the heating element (“The controller 14 may analyse a relationship, such as relative differences or ratios, between the temperature measurements obtained by the plurality of sensors 80, 82, 84”, ¶ 0141); and
control the light source to increase the temperature of the heating element by the calculated difference (“the controller 14 determines a required amount of power to be supplied to the light source 40 to effect the determined temperature adjustment”, ¶ 0142).
Regarding claim 6, Batista in view of Skoda and Rogan discloses the aerosol-generating apparatus of claim 4, as stated above. Batista further discloses wherein the processor is configured to stop operation of the light source when the detected temperature of the heating element is equal to or higher than a designated first temperature (“The controller 14 may cease or reduce the power supply to the light source when the heater temperature exceeds a second threshold temperature”, ¶ 0140).
Regarding claim 9, Batista in view of Skoda and Rogan teaches the aerosol-generating apparatus of claim 1, as stated above. However, Batista does not disclose that the apparatus further comprises a movement detection sensor configured to detect the movement of the cover member.
Rogan teaches that the apparatus further comprises a movement detection sensor (“sensor structure 49”, ¶ 0083) configured to detect the movement of the cover member (“a sensor structure 49 configured to detect whether the slidable cover 18 is in the open or in the closed position”, ¶ 0083), and
turn on the aerosol-generating apparatus based on the movement of the cover member from a first position to a second position being detected by the movement detection sensor (“activate the electronic cigarette 10, preferably at least the vaporizer structure 24, when (and, optionally, only when) the signal 71 indicates that the slidable cover 18 is in the closed position”, ¶ 0088); and
turn off the aerosol-generating apparatus based on the movement of the cover member from the second position to the first position being detected by the movement detection sensor (“deactivate the electronic cigarette 10, preferably at least the vaporizer structure 24, when (and, optionally, only when) the signal 71 indicates that the slidable cover 18 is in the open position”, ¶ 0088).
One of ordinary skill in the art would have understood that there was a benefit to including a movement detection sensor configured to detect movement of the cover member, wherein the processor is configured to: turn on the aerosol-generating apparatus when movement of the cover member from the first position to the second position is detected; and turn off the aerosol-generating apparatus when movement of the cover member from the second position to the first position is detected, in that the user can efficiently move the cover member and turn the apparatus on or off in a single step. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have included a movement detection sensor configured to detect movement of the cover member, as taught by Rogan, in the apparatus taught by Batista, wherein the processor is configured to: turn on the aerosol-generating apparatus when movement of the cover member from the first position to the second position is detected; and turn off the aerosol-generating apparatus when movement of the cover member from the second position to the first position is detected, in order to achieve this benefit. In the apparatus of the combination, the first position is the position at which the at least one light-transmitting window is covered by the cover member, and the second position is the position at which the at least one light-transmitting window is exposed to the outside of the aerosol-generating apparatus.
Regarding claim 10, Batista in view of Skoda and Rogan teaches the aerosol-generating apparatus of claim 1, as stated above. As discussed above, the sensor in the aerosol-generating apparatus of the combination comprises a light-quantity measurement sensor configured to detect a quantity of the external light transmitted from the outside of the aerosol-generating apparatus to the inside of the aerosol-generating apparatus through the at least one light-transmitting window.
Regarding claim 11, Batista in view of Skoda and Rogan teaches the aerosol-generating apparatus of claim 10, as stated above. Batista further discloses wherein the processor is configured to:
control the quantity of light received by the heating element by the light source based on the external light transmitted to the inside of the aerosol-generating apparatus (“The ambient light source may function to supplement the light source of the aerosol-generating device . . . . This may also advantageously reduce the amount of power required by the aerosol-generating device”, ¶ 0027) and to provide sufficient light from the light source to the heating element if there is insufficient external light (“a light source may allow the plasmonic heating element to generate heat without receiving light from an external light source”, ¶ 0029).
However, Batista does not explicitly disclose that the processor is configured to calculate a difference between a quantity of light of a designated light profile and the detected quantity of the external light transmitted to the inside of the aerosol-generating apparatus; and control the light source to increase, by the calculated difference, the quantity of light received by the heating element.
One of ordinary skill in the art would have understood that there was a benefit to calculating a difference between a quantity of light of a designated light profile and the detected quantity of the external light transmitted to the inside of the aerosol-generating apparatus; and control the light source to increase, by the calculated difference, the quantity of light received by the heating element in that it allows for a precise amount of total light to reach the heating element, allowing for precise heating (“allow for more precise control the heat produced by the heating element”, ¶ 0078). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have configured the processor to calculate a difference between a quantity of light of a designated light profile and the detected quantity of the external light transmitted to the inside of the aerosol-generating apparatus; and control the light source to increase, by the calculated difference, the quantity of light received by the heating element, in order to obtain this benefit.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Batista et al. (US 2020/0367570 A1) in view of Skoda (US 2019/0231992 A1) and Rogan et al. (US 2020/0337377 A1) as applied to claim 2 above, and further in view of Reevell (US 2018/0132535 A1).
Regarding claim 3, Batista in view of Skoda and Rogan discloses the aerosol-generating apparatus of claim 2, as stated above. Batista further discloses wherein the aerosol is generated from an aerosol-generating material (“aerosol-forming substrate”, ¶ 0114) contained inside the heating element (“delivery of liquid aerosol-forming substrate to a heater assembly 30”, ¶ 0114).
However, Batista does not disclose that a mesh portion is arranged in the heating element such that the aerosol is discharged from an inside of the heating element to the discharge path through the mesh portion.
Reevell, in the same field of endeavor, teaches an aerosol-generating apparatus (“aerosol-generating system 10”, Fig. 4, ¶ 125) wherein a mesh portion (“mesh filter 42”, Fig. 5, ¶ 0126) is arranged such that an aerosol (“volatile compounds”, ¶ 0130) generated from an aerosol-generating material (“aerosol-forming substrate 38”, Fig. 5, ¶ 126, 130) is discharged to a discharge path (path through “downstream end”, ¶ 0126, 0129) through the mesh portion (“mesh filter 42 is attached to a downstream end”, ¶ 0126). One of ordinary skill in the art would have understood that there was a benefit to using a mesh portion in that it helps to retain the aerosol-generating substrate (“retain the tobacco plug”, ¶ 0126). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have arranged the mesh portion taught by Reevell next to the aerosol-generating material taught by Batista such that the aerosol is discharged to the discharge path through the mesh portion for the benefit of retaining the aerosol-generating material. In the device of the combination, the mesh portion would be arranged in the heating element because the aerosol-generating material taught by Batista is contained inside the element; therefore, the aerosol would be discharged from an inside of the heating element to the discharge path through the mesh portion.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Batista et al. (US 2020/0367570 A1) in view of Skoda (US 2019/0231992 A1) and Rogan et al. (US 2020/0337377 A1) as applied to claim 4 above, and further in view of Takeuchi et al. (US 2017/0042252 A1).
Regarding claim 7, Batista in view of Skoda and Rogan discloses the aerosol-generating apparatus of claim 4, as stated above. Batista further discloses wherein the processor is configured to control the light source to make the temperature of the heating element correspond to a designated temperature profile (“consistent operating temperature”, ¶ 0142), when an initial temperature of the heating element, detected by the sensor, is equal to or lower than a designated second temperature (“the controller 14 may determine that a temperature adjustment, such as an increase in temperature at the heating surface 34, is required. When the controller determines that a temperature adjustment is required, the controller 14 determines a required amount of power to be supplied to the light source 40 to effect the determined temperature adjustment. The controller 14 may therefore control the temperature of the heating surface 34 to correct for cooling induced by an incoming air supply as the user puffs on the mouthpiece 66. This helps to maintain a consistent operating temperature at the heating surface 34 of the heating element 32, whilst the user operates the device”, ¶ 0142).
However, Batista does not disclose wherein the processor is configured to stop operation of the sensor when the initial temperature of the heating element, detected by the sensor, is equal to or lower than the designated second temperature.
Takeuchi, in the same field of endeavor, teaches turning sensors on and off at cyclic intervals in an aerosol-generating apparatus (¶ 0281). Takeuchi also teaches that there is a benefit to cycling the power to the sensors in that it provides “energy-saving” (¶ 0281). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have configured the processor taught by Batista to stop operation of the sensor (for an interval of time) when the initial temperature of the heating element, detected by the sensor, is equal to or lower than the designated second temperature, in order to obtain this benefit.
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.
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/C.G.C./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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