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 .
Election/Restrictions
Claim 4 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species ii, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 09/02/2025.
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 5-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Regarding claims 1-3 and 5-8
The claim(s) recite(s) the calculation of a “variance” and comparison of this “variance” to some sort of reference (although it is not entirely clear the definition of “variance” within this Application as it strays from the art accepted terminology as explained below). This judicial exception is not integrated into a practical application because there is no structure directed to integration, the claim does not affect any physical structure and is only a calculation. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because at present the calculation would be a trivial to perform mentally for small values of “n” and does not require structural integration or output of any kind, i.e. it is directed to an abstract idea, per se.
Regarding claims 9-12
There is significant structure introduced in claims 9-12, but the only structure which is directly related to the abstract idea as claimed is “the controller” which is taken to be a generic processor or micro-controller and thus not “significantly more” as required by 35 USC §101. Much of the structure (e.g. the various sampling devices) and the controller controlling the vaporization piece are stated in the Specification as being integrated with the abstract idea, but there is no indication in the claims they are used this way. These claims would overcome a rejection under 35 USC §101 were the controller/sensing/sampling structures tied to the abstract idea by any positively recited claim language. One such example would be modifying claim 9 in the manner below:
“The controller being configured to: drive the vaporization piece to vibrate such that the vaporization piece vaporizes the to-be-vaporized liquid based on the determination of dry-burning status determined by the method of claim 1”.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-3 and 5-12 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Applicant has not described “calculating a variance between the vaporization parameters and a sample mean, the sample mean being a value representing a vaporization parameter level of a stable vaporization stage of the vaporizer” in such a way as to convey possession. There is significant ambiguity as to how the variance of the vaporization stage is calculated (see below), but there is at least one specific equation given in paragraph 68. However, this equation relies on “M” as a sample mean which is the mean of values taken during a normal working period. There is no indication in the spec that Applicant had possession of any more general process by which to determine variance with “a value representing a vaporization parameter level of a stable vaporization stage”. That is the claim is directed to a genus which would include any relation of the mean to a “value representing a vaporization parameter”. The MPEP requires that when a genus claim is presented it is represented by a “number of species” (see MPEP §2163) whereas Applicant has presented only a single equation.
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 1-3 and 5-12 are 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.
The claim is indefinite as Applicant is using the term “variance” which is a term that has a well-established meaning outside of the typical usage of the claim. This is not a problem in and of itself as Applicant is allowed to be their own lexicographer, however the usage must be clear and consistent throughout the Application. See MPEP §2173.01.
It is noted that Applicant has provided for the claim term variance which is contrary to the accepted the definition.
Variance for discrete variables is normally defined as
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In the case of all values being equally likely (as is the case in the present system) this simplifies to:
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Applicant has defined Variance as follows:
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Where the sample mean M has apparently been predetermined as
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As such the values x1-xn are not contributing to the Sample mean and thus the s^2 is not a true variance as would normally be defined because the mean (mu) is not dependent on the present sample values.
Since Applicant is providing a predetermined modeled value for the mean as a predictive value, what applicant has defined as sample mean is what is usually referred to as a Mean Squared Error which takes the form:
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However, Applicant does not appear to consistently use this definition throughout the Disclosure. In other cases it is merely a “value representing a vaporization parameter level”.
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Claim 2 seems to redefine again what a variance is by apparently using variance with a sample mean that is determined during a first sampling period which can be the dry burning period. In that case where is the threshold and variance for comparison to be derived from?
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Prior art
The metes and bounds of the claim cannot be adequately determined for Examination. However, it is noted that US 2022/0015443 teaches using mean squared error as a threshold (see paragraph 0148 and CN 110251817 teaches detecting dry burning through a threshold.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WOODY A LEE JR whose telephone number is (571)272-1051. The examiner can normally be reached Monday - Friday 0800-1630.
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/WOODY A LEE JR/ Primary Examiner, Art Unit 3761