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 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, 12-14, 20-23, and 25-27 are rejected under 35 U.S.C. 103 as being unpatentable over Robert et al. 2020/0037668, in view of Bache et al. 2019/0200675
Regarding claim 1, Robert teaches an aerosol provision device comprising: a power source (battery 2, figure 1);
control circuitry configured to cause the power source to supply electrical current in accordance with a set duty cycle to an aerosol generator (0008 states “the battery can be dynamically connected to the aerosol-generating element so that a duty cycle of the current and voltage applied to the aerosol-generating element can be varied”) so as to maintain a substantially constant average power (0012 states “controlling the duty cycle of the current supplied from the battery in this way, as high a duty cycle as possible can be used while maintaining the voltage at the control unit at or above a minimum operating voltage”, the voltage is maintained.), wherein the duty cycle is set dependent on the temperature of the aerosol generator (the abstract states “the at least one first characteristic comprising a temperature of the battery; and adjusting, using the control unit, a value of the duty cycle based on a predetermined rule which outputs the value of duty cycle based on the measured at least one battery characteristic”);
and wherein the control circuitry is configured to determine a voltage supplied by the power source (0041 states “The method may further comprise periodically measuring an output battery voltage of the battery”);
wherein the control circuitry is configured to identify abnormal conditions in the event that the duty cycle is above a target duty cycle (0026 states “The duty cycle may be adjusted periodically, for example every 0.5 seconds, to account for a changing value of the second characteristic of the aerosol-generating element. In this way, the duty cycle may start at a low level and may be progressively increased while ensuring that the control unit receives sufficient voltage.” The changing second characteristic is an abnormal condition that gets identified leading to a change in the target duty cycle one the second characteristic has increased.);
and wherein the control circuitry is configured to determine a first target duty cycle threshold (0092 states “To determine which duty cycle to use, the MCU first selects a sub-rule associated with a range of battery temperatures in which the measured battery temperature 31 falls. In the example illustrated in FIG. 3, this is Range 2, covering temperatures from T2 to T3, as illustrated by the dotted line box 32. The MCU then selects a duty cycle from within the sub-rule associated with Range 2.” Since 0013 states “. The duty cycle threshold is being determined from a );
Roberts fails to teach the duty cycle threshold being based on the determined voltage. Bache teaches an analogous aerosol delivery device that does teach a duty cycle threshold being determined based on measured voltage (0073 states “the controller 70 determines a duty cycle based on the measured voltage.”). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Robert with the teachings of Bache and include the duty cycle as being calculated by the measured voltage as the use of a measured voltage with the duty cycle allows for the implementation of a voltage cut-off level (0036).
Regarding claim 12, Robert teaches the aerosol provision system of claim 1, wherein the second duty cycle threshold is a constant value in a range selected from the group comprising greater than 0.85, greater than 0.90, greater than 0.95, and greater than 0.98 relative to a maximum duty cycle (paragraph 0039 depicts the duty cycle being any percentage of the maximum duty cycle, this range would be a second duty cycle threshold as it is an additional duty cycle above the first duty cycle.).
Regarding claim 13, Robert teaches the aerosol provision system of claim 1, but fails to explicitly teach wherein the voltage threshold is a constant value selected from the group comprising 95% of the voltage of the power source at full charge, 90% of the voltage of the power source at full charge, and 85% of the voltage of the power source at full charge. However in paragraph 0117, Robert does teach the use of a voltage threshold and wherein the actual voltage applied will be at a portion less than the threshold voltage (“step 50, in which the battery voltage is measured. In step 51 a rate of drop of battery voltage is calculated from the measured battery voltage and from measurements of battery voltage made in previous cycles of the process. In step 52 the MCU determines if the rate of drop of battery voltage is greater than the threshold (or if the rate of change of battery voltage is lower than the threshold)”). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to include the use of specific voltage thresholds as it would aid in the control of the electric heating element by being able to shut off should the measured voltage meet the criteria in relation to the voltage threshold.
Since the claimed invention is taught except for the specific proportion of the full voltage that is being used, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include wherein the voltage threshold is a constant value selected from the group comprising 95% of the voltage of the power source at full charge, 90% of the voltage of the power source at full charge, and 85% of the voltage of the power source at full charge, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges or values involves only routine skill in the art.
Regarding claim 14, teaches the aerosol provision system of claim 1, wherein the control circuitry is configured to determine if the measured voltage is above or below a second voltage threshold, wherein when the measured voltage is below the second voltage threshold the control circuitry is configured to perform any selected from the group comprising turning off the device, ceasing the supply pulses of electrical current having a duty cycle to the aerosol generator and provide an indication to the user, and wherein the second voltage threshold value is less than the voltage threshold (0117 states “The rate of battery voltage drop would be measured every 200 ms interval, for example. If, in step 52 the rate of drop of battery voltage is greater than the threshold, the duty cycle would be reduced from 20% to 15%, and then further reduced from 15% to 10% if rate of battery drop is still more than 0.5 V/s in the next cycle, after further 200 ms. A lower limit on the duty cycle of 5% could be set. If the process requires the duty cycle to be reduced from 5%, then the device may be deactivated.”).
Regarding claim 20, Robert teaches the aerosol provision system of claim 1, wherein the aerosol generator is an electric heater (heater is referred to as resistive).
Regarding claim 21, Robert teaches the aerosol provision system of claim 1, further comprising the aerosol generating material (0056 states “The aerosol-forming substrate may comprise a tobacco-containing material containing volatile tobacco flavour compounds which are released from the substrate upon heating.”).
Regarding claim 22, modified Robert teaches the aerosol provision system of claim 1, but fails to teach wherein the aerosol provision system comprises a control unit part and a consumable part detachably couplable to the control unit part, and wherein the control unit part comprises the control circuitry and the consumable part comprises the aerosol generator. Bache discloses an analogous vaping device that does teach wherein the aerosol provision system comprises a control unit part (Power section 30) and a consumable part detachably couplable (0034) to the control unit part (Cartridge 20), and wherein the control unit part comprises the control circuitry (0037) and the consumable part comprises the aerosol generator (0048). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to further modify modified Robert with the teachings of Bache and include wherein the aerosol provision system comprises a control unit part and a consumable part detachably couplable to the control unit part, and wherein the control unit part comprises the control circuitry and the consumable part comprises the aerosol generator as this would allow for the use of a disposable cartridge (0034).
Regarding claim 23, Robert teaches a control unit for an aerosol provision system comprising: a power source (battery 2, figure 1);
control circuitry configured to cause the power source pulses of electrical current having a duty cycle to an aerosol generator in use (0008 states “the battery can be dynamically connected to the aerosol-generating element so that a duty cycle of the current and voltage applied to the aerosol-generating element can be varied”) so as to maintain a substantially constant average power (0012 states “controlling the duty cycle of the current supplied from the battery in this way, as high a duty cycle as possible can be used while maintaining the voltage at the control unit at or above a minimum operating voltage”), wherein the duty cycle is dependent on the temperature of the aerosol generator (the abstract states “the at least one first characteristic comprising a temperature of the battery; and adjusting, using the control unit, a value of the duty cycle based on a predetermined rule which outputs the value of duty cycle based on the measured at least one battery characteristic”);
and wherein the control circuitry is configured to determine a voltage supplied by the power source (0041 states “The method may further comprise periodically measuring an output battery voltage of the battery”);
wherein the control circuitry is configured to identify abnormal conditions in the event that the duty cycle is above a target duty cycle (0026 states “The duty cycle may be adjusted periodically, for example every 0.5 seconds, to account for a changing value of the second characteristic of the aerosol-generating element. In this way, the duty cycle may start at a low level and may be progressively increased while ensuring that the control unit receives sufficient voltage.” The changing second characteristic is an abnormal condition that gets identified leading to a change in the target duty cycle one the second characteristic has increased.);
and wherein the control circuitry is configured to determine a first target duty cycle threshold (0092 states “To determine which duty cycle to use, the MCU first selects a sub-rule associated with a range of battery temperatures in which the measured battery temperature 31 falls. In the example illustrated in FIG. 3, this is Range 2, covering temperatures from T2 to T3, as illustrated by the dotted line box 32. The MCU then selects a duty cycle from within the sub-rule associated with Range 2.” Since 0013 states “. The duty cycle threshold is being determined from a );
Roberts fails to teach the duty cycle threshold being based on the determined voltage. Bache teaches an analogous aerosol delivery device that does teach a duty cycle threshold being determined based on measured voltage (0073 states “the controller 70 determines a duty cycle based on the measured voltage.”). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Robert with the teachings of Bache and include the duty cycle as being calculated by the measured voltage as the use of a measured voltage with the duty cycle allows for the implementation of a voltage cut-off level (0036).
Regarding claim 25, Robert teaches aerosol provision means comprising: power source means (battery 2, figure 1);
control means configured to cause the power source pulses of electrical current having a duty cycle to aerosol generating means (0008 states “the battery can be dynamically connected to the aerosol-generating element so that a duty cycle of the current and voltage applied to the aerosol-generating element can be varied”) so as to maintain a substantially constant average power (0012 states “controlling the duty cycle of the current supplied from the battery in this way, as high a duty cycle as possible can be used while maintaining the voltage at the control unit at or above a minimum operating voltage”), wherein the duty cycle is dependent on the temperature of the aerosol generating means (the abstract states “the at least one first characteristic comprising a temperature of the battery; and adjusting, using the control unit, a value of the duty cycle based on a predetermined rule which outputs the value of duty cycle based on the measured at least one battery characteristic”);
and wherein the control means is configured to determine a voltage supplied by the power source means (0041 states “The method may further comprise periodically measuring an output battery voltage of the battery”);
wherein the control circuitry is configured to identify abnormal conditions in the event that the duty cycle is above a target duty cycle (0026 states “The duty cycle may be adjusted periodically, for example every 0.5 seconds, to account for a changing value of the second characteristic of the aerosol-generating element. In this way, the duty cycle may start at a low level and may be progressively increased while ensuring that the control unit receives sufficient voltage.” The changing second characteristic is an abnormal condition that gets identified leading to a change in the target duty cycle one the second characteristic has increased.);
and wherein the control circuitry is configured to determine a first target duty cycle threshold (0092 states “To determine which duty cycle to use, the MCU first selects a sub-rule associated with a range of battery temperatures in which the measured battery temperature 31 falls. In the example illustrated in FIG. 3, this is Range 2, covering temperatures from T2 to T3, as illustrated by the dotted line box 32. The MCU then selects a duty cycle from within the sub-rule associated with Range 2.” Since 0013 states “. The duty cycle threshold is being determined from a );
Roberts fails to teach the duty cycle threshold being based on the determined voltage. Bache teaches an analogous aerosol delivery device that does teach a duty cycle threshold being determined based on measured voltage (0073 states “the controller 70 determines a duty cycle based on the measured voltage.”). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Robert with the teachings of Bache and include the duty cycle as being calculated by the measured voltage as the use of a measured voltage with the duty cycle allows for the implementation of a voltage cut-off level (0036).
Regarding claim 27, Robert teaches a method of operating an aerosol provision system comprising control circuitry and a power source, wherein the control circuity performs the method of:
determining a voltage supplied by the power source (0041 states “The method may further comprise periodically measuring an output battery voltage of the battery”);
causing the power source to supply electrical current having a duty cycle to an aerosol generator (0008 states “the battery can be dynamically connected to the aerosol-generating element so that a duty cycle of the current and voltage applied to the aerosol-generating element can be varied”) so as to maintain a substantially constant average power (0012 states “controlling the duty cycle of the current supplied from the battery in this way, as high a duty cycle as possible can be used while maintaining the voltage at the control unit at or above a minimum operating voltage”), wherein the duty cycle is dependent on the temperature of the aerosol generator (the abstract states “the at least one first characteristic comprising a temperature of the battery; and adjusting, using the control unit, a value of the duty cycle based on a predetermined rule which outputs the value of duty cycle based on the measured at least one battery characteristic”);
wherein the control circuitry is configured to identify abnormal conditions in the event that the duty cycle is above a target duty cycle (0026 states “The duty cycle may be adjusted periodically, for example every 0.5 seconds, to account for a changing value of the second characteristic of the aerosol-generating element. In this way, the duty cycle may start at a low level and may be progressively increased while ensuring that the control unit receives sufficient voltage.” The changing second characteristic is an abnormal condition that gets identified leading to a change in the target duty cycle one the second characteristic has increased.);
and wherein the control circuitry is configured to determine a first target duty cycle threshold (0092 states “To determine which duty cycle to use, the MCU first selects a sub-rule associated with a range of battery temperatures in which the measured battery temperature 31 falls. In the example illustrated in FIG. 3, this is Range 2, covering temperatures from T2 to T3, as illustrated by the dotted line box 32. The MCU then selects a duty cycle from within the sub-rule associated with Range 2.” Since 0013 states “. The duty cycle threshold is being determined from a );
Roberts fails to teach the duty cycle threshold being based on the determined voltage. Bache teaches an analogous aerosol delivery device that does teach a duty cycle threshold being determined based on measured voltage (0073 states “the controller 70 determines a duty cycle based on the measured voltage.”). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Robert with the teachings of Bache and include the duty cycle as being calculated by the measured voltage as the use of a measured voltage with the duty cycle allows for the implementation of a voltage cut-off level (0036).
Claims 3 and 5-10 are rejected under 35 U.S.C. 103 as being unpatentable over modified Robert, in view of Zitzke et al. 2016/0213066
Regarding claim 3, modified Robert teaches the aerosol provision system of claim 1, but fails to teach wherein the determined voltage is compared to a source of comparison data to determine the first duty cycle threshold. Zitzke teaches an analogous electronic smoking device that does teach wherein the determined voltage is compared to a source of comparison data to determine the first duty cycle threshold (0049 states “The required duty cycle, as a function of the actual battery voltage (i.e. the representative value of the battery voltage described above), for achieving a constant heater power of P.sub.0=3 W is determined by a simple calculation. The results can be stored as a look-up table in a memory”). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify modified Robert with the teachings of Zitzke and include wherein the determined voltage is compared to a source of comparison data to determine the first duty cycle threshold as this allows for a microprocessor to select a duty cycle in response to a measured battery voltage (0049).
Regarding claim 5, modified Robert teaches the aerosol provision system of claim 1, but fails to teach wherein the control circuitry is configured to determine the first duty cycle threshold based on a previous duty cycle. Zitzke does teach wherein the control circuitry is configured to determine the first duty cycle threshold based on a previous duty cycle (0049 states the use of a look up table to select a duty cycle, this look up table is based on data from previous duty cycles.). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify modified Robert with the teachings of Zitzke and include wherein the control circuitry is configured to determine the first duty cycle threshold based on a previous duty cycle as this allows for a correct level of electric power to be applied based on the measured battery voltage (abstract).
Regarding claim 6, modified Robert in view of Zitzke teaches the aerosol provision system of claim 5, wherein the previous duty cycle having been determined during a previous aerosol generator activation event corresponding to a user puff (0019 of Zitzke teaches “The representative value of the battery voltage derived in this way during puff n can be applied in the next puff (i.e. in puff n+1) as the value for the battery voltage. That means, this value is taken as a constant value for the battery voltage during puff n+1 for the purposes of determining the pulse widths to observe the pre-determined level of electric power during puff n+1. During puff n+1, the battery voltage can be frequently measured as well, as in puff n, to derive a new representative value of the battery voltage, which is to be used in puff n+2, and so on..”).
Regarding claim 7, modified Robert in view of Zitzke teaches the aerosol provision system of claim 5, wherein the previous duty cycle having been determined during a previous aerosol generator activation event corresponding to a test event (0019 of Zitzke teaches “For the first puff (puff 1), e.g. the first puff after the battery has been freshly charged, an empirical value can be taken as the representative value of the battery voltage, e.g. the nominal voltage (highest voltage) of a lithium ion battery minus an empirical correction constant.”).
Regarding claim 8, modified Robert in view of Zitzke teaches the aerosol provision system of claim 7, wherein the test event is caused by transitioning the aerosol provision device from a first mode of operation to a second mode of operation ((0009 of Zitzke teaches “The puff detector, for example an inhaling sensor or a manually actuatable switch (see below), indicates an aerosol inhaling puff to the control electronics. The control electronics are adapted to control the heater of the atomizer. For example, when the puff detector detects a puff and indicates or signals that to the control electronics, the heater is powered by means of the control electronics in order to create aerosol..” The first mode of operation is a state in which the heater is powered, and a second mode is where a voltage is measured and aerosol is created.).
Regarding claim 9, modified Robert in view of Zitzke teaches the aerosol provision system of claim 5, wherein the first duty cycle threshold is in the range selected from the group comprising greater 105% of the previous duty cycle, greater 110% of the previous duty cycle, greater 120% of the previous duty cycle, and greater 130% of the previous duty cycle (0016 of Robert depicts increasing duty cycle threshold ranges that are a percentage larger than the previous duty cycle.).
Regarding claim 10, modified Robert in view of Zitzke teaches wherein the first duty cycle threshold is in the range selected from the group comprising greater than the previous duty cycle plus 0.05, greater than the previous duty cycle plus 0.10, and greater than the previous duty cycle plus 0.15 (0016 of Robert depicts increasing duty cycle threshold ranges that are a percentage larger than the previous duty cycle.).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over modified Robert, in view of Farine et al. 9,713,345 and Kieckbusch et al. 2014/0299137
Regarding claim 4, modified Robert teaches the aerosol provision system of claim 2, but fails to teach wherein the control circuitry is configured to ascertain if the determined voltage is above or below a voltage threshold; wherein when the determined voltage is above the voltage threshold the control circuitry is configured to compare the duty cycle to the first duty cycle threshold; and/or wherein when the determined voltage is below the voltage threshold the control circuitry is configured to compare the duty cycle to a second duty cycle threshold.
Farine teaches an analogous electric heater control element that does teach wherein the control circuitry is configured to compare the duty cycle to the first duty cycle threshold (Column 2 line 48), and wherein the control circuitry is configured to compare the duty cycle to a second duty cycle threshold (Column 2 line 59). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify modified Roberts with the teachings of Farine and include wherein the control circuitry is configured to compare the duty cycle to the first duty cycle threshold, and wherein the control circuitry is configured to compare the duty cycle to a second duty cycle threshold as this would allow for a reduction in target temperature, or a stoppage in the supply of current if the duty cycle differs from an expected duty cycle (abstract).
The combination as taught still fails to teach wherein the control circuitry is configured to ascertain if the determined voltage is above or below a voltage threshold, and wherein when the determined voltage is above the voltage threshold; and/or wherein when the determined voltage is below the voltage threshold.
Kieckbusch teaches an analogous electronic cigarette apparatus that does teach wherein the control circuitry is configured to ascertain if the determined voltage is above or below a voltage threshold, and wherein when the determined voltage is above the voltage threshold; and/or wherein when the determined voltage is below the voltage threshold (Paragraph 0045 discusses the use of a voltage being compared to a voltage threshold, and an action taking place based on the voltage being above or below the threshold. One of ordinary skill in the art would be able to combine this concept with the first and second duty cycle thresholds from Farine, and make the duty cycle comparison the desired action that would take place once the voltage is at or below the threshold.). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the combination of modified Robert and Farine and include wherein the control circuitry is configured to ascertain if the determined voltage is above or below a voltage threshold, and wherein when the determined voltage is above the voltage threshold; and/or wherein when the determined voltage is below the voltage threshold as this provides the device with a way of regulating the voltage (0004).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over modified Robert, in view of Hatton et al. 2020/0120991
Regarding claim 11, modified Robert teaches the aerosol provision system of claim 1, but fails to teach wherein the first duty cycle threshold has a maximum value in a range selected from the group comprising 0.95, 0.98, 0.99 and 1.00 relative to a maximum duty cycle. Hatton discloses an analogous vaporizer system that does teach wherein the first duty cycle threshold has a maximum value in a range selected from the group comprising 0.95, 0.98, 0.99 and 1.00 relative to a maximum duty cycle (paragraph 0097 depicts the duty cycle being implemented as a percentage of the maximum duty cycle). It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Robert with the teachings of Hatton and include wherein the first duty cycle threshold has a maximum value in a range selected from the group comprising 0.95, 0.98, 0.99 and 1.00 relative to a maximum duty cycle as this allows for an implementation of hybrid heater control (0096).
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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/ROHAN PATEL/Examiner, Art Unit 3785
/BRANDY S LEE/Supervisory Patent Examiner, Art Unit 3785