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 Arguments
Applicant's arguments filed 10/22/2025 have been fully considered.
Examiner Response to Applicant’s Arguments Under 35 U.S.C. § 101:
Applicant’s arguments have been carefully considered but are not persuasive. While Applicant asserts that the pending claims recite a technological solution comparable to Thales Visionix and integrate any alleged abstract idea into a practical application, the claimed features amount to no more than abstract data comparison steps coupled with insignificant extra-solution activity using generic control components.
Applicant contends that the claims provide a technological improvement similar to the system in Thales Visionix v. United States, 850 F.3d 1343 (Fed. Cir. 2017). However, Thales involved a specific configuration of inertial sensors that improved the functioning of the navigation system itself. In contrast, the instant claims merely recite a generic controller configured to determine whether an aerosol-forming substrate has been previously heated based on comparisons of threshold values and timer readings, and to terminate power accordingly. These steps constitute generic control logic rather than an improvement in the functioning of the controller or any other technology. Therefore, the claims do not provide a technological improvement comparable to Thales Visionix.
Applicant asserts that even assuming arguendo that a judicial exception is present, the claims integrate that exception into a practical application because the determination governs power to the heater, thereby reducing damage or counterfeit use. This argument is not persuasive.
The step of “terminating power to the heater” represents insignificant post-solution activity, as it merely applies the result of the abstract comparison without improving the underlying control mechanism. MPEP § 2106.05(g) explains that mere data output or result application is insufficient to integrate a judicial exception into a practical application.
Likewise, the asserted benefits of “reducing damage” or “preventing counterfeit use” reflect only intended results and field-of-use applications rather than meaningful claim limitations. MPEP § 2106.05(f)–(g). The claims therefore fail to impose a meaningful limit on the judicial exception.
Applicant argues that the claimed determination cannot be performed in the human mind because the heating history is not detectable without sensors. This argument is unpersuasive.
The recited steps, comparing threshold values and timer data, constitute abstract data-evaluation operations conceptually performable by a human using pen and paper. MPEP § 2106.04(a)(2)(III). The use of a generic controller to perform the comparison does not remove the claim from the abstract realm.
Moreover, any receipt of sensor data merely supplies input values for the comparison and therefore represents insignificant data-gathering activity, which fails to meaningfully limit the judicial exception. MPEP § 2106.05(g); CyberSource Corp. v. Retail Decisions, 654 F.3d 1366 (Fed. Cir. 2011).
Applicant contends that the claims provide a “meaningful and significant advantage” that others cannot practice without infringement, thereby adding an inventive concept. This reasoning conflates an intended benefit with an inventive concept.
Under Step 2B, an inventive concept must be found in how the abstract idea is implemented, not merely in the result achieved. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014); MPEP § 2106.05(d).
Here, the controller’s use of threshold-based comparison and subsequent power cutoff reflect routine post-solution activity implemented on conventional hardware. The claims do not recite any specialized circuitry, non-routine configuration, or improvement to computer or sensor functionality. Accordingly, no inventive concept is present.
Applicant’s assertion that the claimed process cannot be performed by the human mind or with pen and paper because it provides automatic control does not confer eligibility. Automation of a mental process using generic electronic components is insufficient to transform an abstract idea into patent-eligible subject matter. Electric Power Group v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016); BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281 (Fed. Cir. 2018). The claimed “automatic termination” step merely represents routine post-solution activity expected of a conventional control circuit.
Taken as a whole, the claims recite the abstract idea of comparing data and applying a decision rule, i.e., determining whether a substrate has been previously heated, implemented using generic controller operations. The additional steps of receiving sensor data, determining, and terminating power are insignificant extra-solution or post-solution activities that fail to provide any specific technological improvement or inventive concept.
Accordingly, the rejection under 35 U.S.C. § 101 is maintained.
Examiner Response to Applicant’s Arguments Under 35 U.S.C. § 103:
Applicant’s arguments filed in response to the § 103 rejection have been carefully considered but are not persuasive. The rejection of claims 1–9 as being unpatentable over Lin (US 2022/0192275) in view of Xiang (US 2014/0251324) is maintained for the reasons set forth below.
Applicant argues that Xiang merely discloses user preference settings (e.g., preset time T₀ and constant power) and does not disclose comparing applied power to threshold levels or determining whether the aerosol-forming substrate has been previously heated.
Applicant’s interpretation is too narrow. While paragraph [0053] of Xiang discusses user-defined settings, Xiang also teaches monitoring whether a preheat timer has exceeded a preset threshold (¶ [0016]) and using applied power and timing logic to infer system conditions (¶¶ [0049]–[0054]). These disclosures describe a feedback control scheme that compares power and time parameters to manage heater operation.
A person of ordinary skill would recognize that such control inherently determines whether the device has completed or repeated a heating cycle, i.e., whether the substrate was previously heated. The use of multiple thresholds simply represents a routine optimization of known control parameters, consistent with MPEP § 2144.05. Accordingly, Xiang reasonably teaches or suggests the claimed determination logic.
Applicant does not dispute that Lin and Xiang are in the same field but argues that Xiang’s timing logic serves a different purpose. This is unpersuasive. Lin teaches a heater control system for aerosol generation, while Xiang provides detailed timing and power-control logic to improve heating management. It would have been obvious to incorporate Xiang’s feedback logic into Lin’s device to enhance temperature regulation, avoid overheating, and ensure consistent aerosol output which is predictable improvements in the field. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007).
In conclusion, together, Lin and Xiang teach or at least suggest: monitoring a preheat timer; comparing applied power against preset thresholds; and determining heater state based on those comparisons.
The combined teachings render the claimed “determining whether the aerosol-forming substrate has been previously heated” obvious to one of ordinary skill in the art, and the use of multiple thresholds is merely an expected optimization. Applicant’s arguments do not overcome the rejection, and the § 103 rejection is maintained.
Election/Restrictions
Claims 10-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 05/29/2025.
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 1-2, 4-9 and 22-23 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception, namely an abstract idea, without significantly more.
The claim(s) recite(s) determining whether an aerosol-forming substrate has been previously heated based on a comparison of threshold power levels and timer values. This includes applying power to a heater, using a preheat monitor timer, and evaluating power levels. These steps are all implementing using a controller executing computer-readable instructions stored in a memory.
The limitation of determing whether the substate has been previously heated based on such comparisons, under its broadest reasonable interpretation, recites a process of data collection, analysis, and logical decision mating, which falls within the “mental processes” grouping of abstract ideas. These steps are basic control logic steps that can be performed in the mind, or by a human using pen and paper, but for the recitation of generic computer components (i.e., the controller and memory).
For example, “determining” whether a power threshold was met for a given time is conceptually no different from monitoring a stopwatch and power dial, then deciding whether heating conditions match a known profile. This kind of rule-based decision making based on measured values and threshold comparisons is considered abstract reasoning, even when automated.
This judicial exception is not integrated into a practical application. The additional elements, specifically, the controller, memory, and heater, are all generic computer or electrical components performing their well-understood, routine, and conventional functions. The controller merely automates the abstract logic described above. There is no improvement to the function of the controller itself or any other technological component of the system.
There are no recited technological modifications, no unconventional configuration of the heating system, and no physical transformation of a specific article beyond what is routinely performed by a controller executing stored instructions. The claim merely uses the components as a vehicle to apply the abstract logic of determining if something has been previously heated.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. The use of a controller executing instructions stored in a memory to carry out logical decision-making based on measured system parameters is well known in the art and does not add an inventive concept.
The additional elements, considered individually and in combination, amount to no more than conventional components performing conventional steps, and merely instruct the application of an abstract idea on a generic machine. As such, the claim lacks an inventive concept that would render the subject matter patent eligible.
Claim 2, 5-9 and 22-23 depend from claim 1 and incorporate the same abstract idea of monitoring and controlling a system based on logic involving measured parameters (e.g. timer and power thresholds). The dependent claims merely recite additional logical instructions or generic structural elements that do not transform the nature of the claim into something patent eligible.
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.
Claim(s) 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Lin et al. (US2022/0192275), and further in view of Xiang (US20140251324).
Regarding claim 1, Lin teaches a non-combustible aerosol-generating device, comprising:
Regarding the limitation of “a memory storing computer-readable instructions and a controller configured to execute the computer-readable instructions”, Lin a microcontroller unit (MCU) configured to execute a “preheating routine” and manage timing and temperature logic (see [0037] [0051]-[0055]);
to cause the non-combustible aerosol-generating device to apply power to a heater (The heating device is arranged inside the electronic cigarette, and the heating coil is arranged inside the heating device. [0043]) to preheat an aerosol-forming substrate (The cigarette liquid stored inside the liquid storage chamber…may be flowable cigarette liquid, or tobacco tar having poor fluidity or waxy solid formed by solidification… [0044]),
Regarding the limitation of “determine whether a preheat monitor timer has exceeded a preheat timer threshold”, Lin teaches a preheat routine that includes monitoring elapsed time and determining whether the preset temperature or duration has been reached ([0045]-[0051]; [0057]-[0059]). Lin further describes “controlling the heating device by means of the microcontroller MCU to perform heating…for the preset heating time” which satisfies the “preheat monitor timer” under BRI, as the controller determines whether a preset time threshold (e.g. 5 seconds) has been exceeded before adjusting control logic.
Lin does not explicitly teach the use of a preheat monitor timer threshold, nor the distinction between first and second threshold power levels tied to timer state.
However, Xiang discloses an electronic cigarette system with a microcontroller, heating element, and timer ([0018], [0020], [0034], [0047]).
Xiang further disclose monitoring whether a preheat timer has exceeded a preheat timer threshold [0016], [0037] and calculating and using applied power [0049]-[0050] and using preset thresholds and timing logic to infer system conditions [0049]-[0054].
Both Lin and Xiang are directed to heating control of an electronic cigarette and Xiang discloses a first/ second threshold power levels and timing conditions, and shows that it is known to combine such timer-based logic with power regulation in aerosol-generating devices.
Therefore, it would have been obvious for one of ordinary skill in the art before the effective filling date of the claimed invention to modify the system of Lin to include the timer-based logic of Xiang. One would be motivated to do so in order to improve heating control accuracy and determine prior substrate usage which are features expressly beneficial in both references.
Regarding claim 2, Lin teaches a capsule including the aerosol-forming substrate (the cigarette liquid stored inside the liquid storage chamber according to the disclosure may be flowable cigarette liquid [0044]) and the heater [0043].
Regarding claim 3, Lin teaches a microcontroller that controls preheating based on a comparison of real-time temperature to a preset value ([0041]). If the real-time temperature is greater than the preset temperature which indicating the substrate has already been heated, the microcontroller ends preheating and enters a standby state:
“If it is determined that the preheating is not required as the real-time temperature value is greater than the preset temperature value… ending the preheating and entering the available stand-by state…” (¶ [0041]).
This teaches determining that the substrate has been previously heated (via elevated temperature) and terminating power in response.
To the extent this is not explicit, Xiang reinforces the obviousness of using control logic to end heating based on prior thermal conditions (e.g., timer thresholds and sensor data; [0044]- [0045]). Therefore, the limitation of claim 3 is rendered obvious in view of Lin and Xiang.
Regarding claim 4-5, Lin does not explicitly teach fault indication in response to determing that the aerosol-forming substrate has been previous been heated. However Lin teaches a device that controls preheating based on a temperature comparison, and can emit warnings via LED or vibration (see ¶¶[0046], [0047]).
Xiang then discloses additional control logic using real-time sensing and stored thresholds to prevent heating under unnecessary or incorrect conditions (see ¶¶[0037]–[0051]). Xiang also discloses the use of indicator signals (LEDs/vibration) tied to logic-based determinations (e.g., S4, S0).
Therefore, it would have been obvious for one of ordinary skill in the art before the effective filling date of the claimed invention to modify Lin’s device to determine whether the same substrate was previously heated (e.g., using logic based on elapsed time, temperature behavior, or prior usage) as suggested by Xiang, and to signal a fault indication (e.g., an error light or vibration warning) in response. One would be motivated to make the modification for the purpose of preventing reuse or protecting the device and user from degraded performance.
Regarding claim 6, Lin discloses a controller that compares a real-time temperature (T2) to a preset value (T1) and initiates heating—and thus aerosol generation—only if T2 is below T1 (¶[0041]). If T2 is equal to or greater than T1, indicating possible prior heating, heating is not permitted (standby mode is entered), preventing aerosol generation. Thus, Lin teaches allowing aerosol generation only when the substrate has not been previously heated, under the broadest reasonable interpretation.
However, Lin does not explicitly determine prior substrate heating. Xiang discloses timer- and condition-based logic to detect prior heating events and control power accordingly (¶[0037], [0039]–[0044]), including enabling or disabling heating based on prior use.
Therefore, it would have been obvious to combine the substrate-status logic of Xiang with Lin’s temperature-based control to more reliably determine whether the substrate was previously heated and conditionally allow aerosol generation. On would be motivated to do so to ensure consistent performance and avoid reheating used substrates, improving safety and quality.
Regarding claim 7, Lin teaches a controller that applies power based on the temperature difference between T1 and T2 (¶[0041]–[0044]), and adjusts heating duration accordingly. Xiang further discloses selection of power levels from a predetermined set based on prior heating history or timer states (e.g., applying full power or reduced power depending on elapsed time or environmental factors) (¶[0037], [0040]–[0044]).
Therefore it would have been obvious to one of ordinary skill to implement aerosol generation using a predetermined set of power levels—as in Xiang—in Lin’s device to improve consistency, safety, and power efficiency.
Regarding claim 8, Xiang teaches adjusting the heating power based on elapsed time since a previous event (e.g., via timer count values) (¶[0037]), detected heating temperature (¶[0040]–[0042]), and control logic tied to prior heating conditions (e.g., duration or power consumption) (¶[0043]–[0044]).
Lin also references heating logic tied to temperature detection (T1, T2) and dynamic power adjustment (¶[0041]–[0046]).
Therefore, it would have been obvious to combine these teachings to select power levels based on any of the recited variables in claim 8 to optimize performance and avoid overheating or underheating of the substrate.
Regarding claim 9, Lin teaches temperature-based heating control (¶[0041]–[0044]) but does not explicitly disclose resistance-based comparisons. Xiang discloses measuring the electrical resistance of the heating element and comparing it to a threshold to determine characteristics such as the element’s temperature or prior usage condition (¶[0040]–[0043]). Based on this determination, the controller adjusts or selects from a set of predetermined power levels.
Therefore, it would have been obvious to incorporate resistance monitoring as an alternative or additional parameter to temperature, as both are established indicators of heating element condition. Doing so would enhance the controller’s ability to regulate power delivery accurately and reliably, especially in devices with single-use or condition-dependent substrates.
Regarding claim 22, Lin discloses an electronic cigarette preheating control method executed by a microcontroller (MCU) that monitors real-time temperature and power, compares measured values to preset thresholds, and controls heater operation accordingly (¶¶ [0042]–[0051], [0066]–[0072], Fig. 1). Lin thus teaches determining whether the applied power meets a target value and adjusting heater output when a deviation is detected.
However, Lin does not explicitly teach (1) setting a “power-profile failed flag” in response to the applied power being less than a threshold or (2) implementing such a flag as a flag bit stored in memory. Lin’s control logic simply transitions the device between heating and standby states based on real-time comparisons, without storing an indicator of the power state.
To remedy this deficiency, Xiang discloses a microcontroller architecture having a sampling unit (52), calculating unit (53), and controlling unit (54) that process voltage and power data to generate control signals according to preset power and timing parameters (¶¶ [0049]–[0054]). Xiang’s modular control logic inherently requires representing threshold comparison results as binary control variables (e.g., signal states or flags) to drive modulation and switching.
It would have been obvious to one of ordinary skill in the art to modify Lin’s system to incorporate Xiang’s structured control logic, including the use of a logical flag bit representing a power-profile failure condition (applied power < threshold). Using such a flag bit to mark threshold violations is a routine digital-control practice that predictably facilitates automated branching, error handling, or diagnostic reporting within MCU-based systems.
Accordingly, claim 22 is obvious over Lin in view of Xiang.
Regarding claim 23, Lin teaches that the MCU continuously monitors heater temperature and applied power during preheating and maintains the system in an “available standby state” after preheating (¶¶ [0016], [0042], [0072]).
Lin, however, does not disclose (1) storing diagnostic information, (2) storing waveform data, or (3) a distinct “monitor mode” for diagnostic recording. Lin’s system monitors in real time but does not log or record data for post-analysis.
To address this deficiency, Xiang discloses sampling and calculating voltage-based duty-cycle waveforms for pulse-width modulation control of a heating element (¶¶ [0049]–[0051]).
The control scheme inherently involves capturing and processing waveform data representing applied power signals and battery conditions.
It would have been obvious to one of ordinary skill in the art to incorporate Xiang’s waveform sampling and calculation functionality into Lin’s MCU-based control system and to configure the device, when in standby (i.e., monitor) mode, to store such waveform or diagnostic data in memory. Recording waveform data for diagnostic or monitoring purposes is a known and predictable enhancement that improves system reliability and enables evaluation of heating performance.
Accordingly, claim 23 is obvious over Lin in view of Xiang.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER KESSIE whose telephone number is (571)272-7739. The examiner can normally be reached Monday - Thursday 7:00am - 5:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H Wilson can be reached at (571) 270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JENNIFER A KESSIE/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747