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 .
This office action is in response to applicant’s amendments and remarks filed January 2, 2026. Claims 1 and 23 have been amended.
Election/Restrictions
Applicant's election with traverse of Group 1 identified as claims 1–23, drawn to an electronic aerosol delivery system and control circuitry for the same in the reply filed on 08/18/2025 is acknowledged. The traversal is on the ground(s) that “the differences between groups are not substantial enough to create any burden associated with searching. Indeed, the same search 1s likely to be equally applicable to all of the identified groups.” This is not found persuasive because this a 371 application and, as demonstrated in the Restriction mailed on 06/17/2025, Groups 1–3 lack the same or corresponding special technical feature.
The requirement is still deemed proper and is therefore made FINAL.
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 1–23 rejected under 35 U.S.C. 101 because the claimed invention is directed to the judicial exceptions of a mathematical concept or mental process without significantly more.
Step 1: This part of the eligibility analysis evaluates whether the claim falls within any statutory category. MPEP 2106.03. The claim 1 is drawn to an electronic aerosol delivery system and claim 23 is drawn to control circuity. Thus, these claims and their dependents pass Step 1 because they are drawn to an article of manufacture or a machine, which are statutory categories of invention.
Step 2A Prong One: This part of the eligibility analysis evaluates whether the claim recites a judicial exception. As explained in MPEP 2106.04(II) and the October 2019 Update, a claim “recites” a judicial exception when the judicial exception is “set forth” or “described” in the claim. Independent claims 1 and 23 and dependent claims 19–22 contain the most explicit judicial exceptions and are provided first in the below list of judicial exceptions:
Independent Claim 1’s “control circuitry configured to…determine a change in one or more of the at least one operating parameter; and, in response to determining the change in one or more of the at least one operating parameter, to modify a control parameter of the at least one control parameter of the electronic aerosol delivery system.”
This limitation falls into the “mathematical concept” group of abstract ideas. This limitation also falls into the “mental process” group of abstract ideas, because the recited determination and modification step is simple enough that it can be practically performed in the human mind. This conclusion is evidenced by at least the following portions from Applicant’s Substitute Specification – Clean Copy filed on 11/07/2022 (“Specification”) and Drawings filed on 11/07/2022 (“Drawings”).
Applicant’s Specification evidences that claim 1’s determination and modification step is carried out by comparing a parameter to a model obtained by experimental testing and modifying various control parameters to meet the desires of a user. See id. at 38 l. 11– p. 39 l. 2 (explaining the controller is able to monitor and predict future outcomes based on previous acquired data), id. at 42 ll. 12–20 (explaining that the controller uses a model with “parameterized by data derived from mathematical modelling and/or experimentation, and/or by usage data describing how one or more users modify”), id. at 43 ll. 1–18 (describing testing machines to obtain the aerosol data for the model), and id. at 44 l. 5– p.45 l.2 (describing a method of using the machine to obtain the mathematical model).
Applicant’s Drawings at Figs. 7A–7D show “an approach to selection of control parameter values for an aerosol delivery device which can be used to mitigate against changes in aerosol characteristics caused by changes in one or more operating characteristics determined by the control circuitry.” Specification at 45 ll. 3–6; see also,
Applicant’s Specification describes at length how to obtain experimental data and use it modify control parameters. See generally, id. at 45 l.7– p.55 l. 16.
Although the above limitation falls under several exceptions (e.g., a mathematical concept-type abstract idea, a mental process-type abstract idea), there are no bright lines between the types of exceptions. See, e.g., MPEP 2106.04(I).
Claim 19’s “wherein the control circuitry is further configured to determine how to modify the control parameter using a model which relates one or more operating parameters to one or more aerosol characteristics, and wherein the one or more operating parameters comprise at least one control parameter.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 20’s “wherein the model is parameterized using experimental data describing how at least one aerosol characteristic of an aerosol generated by the electronic aerosol delivery system varies as a function of different operating parameter values.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 21’s “wherein the control circuitry is further configured to determine how to modify the control parameter using a classifier which takes at least one operating parameter value as an input, and returns at least one control parameter value as an output.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 22’s “wherein the classifier is trained using usage data describing a relationship between one or more operating parameter changes and one or more control parameter changes determined by one or more users in response to the one or more operating parameter changes.
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Independent Claim 23’s “determine a change in one or more of the at least one operating parameter; and modify, in response to determining change in the one or more of the at least one operating parameter, a control parameter of the at least one control parameter of the electronic aerosol delivery system to generate an aerosol having a second aerosol profile during a subsequent puff.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 2’s “wherein each of the at least one operating parameter and the at least one control parameter is associated with one of the following aspects of operation: supply of power to an aerosol generating component, control of airflow in the electronic aerosol delivery system, supply of aerosolizable material to the aerosol generating component, or another aspect of operation of the electronic aerosol delivery system; and wherein the control parameter modified by the control circuitry is associated with a different aspect of operation than that of the one or more of the at least one operating parameter determined to have changed.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 3’s “wherein the control parameter is modified in a manner which mitigates against a change in one or more characteristics of the first aerosol profile resulting from the change in the one or more of the at least one operating parameter.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 4’s “electronic aerosol delivery system of claim 3, wherein the first aerosol profile comprises a plurality of aerosol characteristics, and wherein the control parameter is selected to mitigate against a change in one or more of the plurality of aerosol characteristics, and wherein the one or more of the plurality of aerosol characteristics are selected from the plurality of aerosol characteristics based on a predetermined priority ranking of the plurality of aerosol characteristics.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 5’s “electronic aerosol delivery system of claim 4, wherein the predetermined priority ranking of the plurality of aerosol characteristics is associated with a specific user of the electronic aerosol delivery system.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above. This is similar to a lookup table.
Claim 6’s “electronic aerosol delivery system of claim 1, wherein the electronic aerosol delivery system further comprises an aerosol generating component, and wherein determining the change in the one or more of the at least one operating parameter comprises determining a change in an operating parameter of the aerosol generating component.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 7’s “electronic aerosol delivery system of claim 6, wherein determining the change in the operating parameter of the aerosol generating component comprises determining a change in a capacity of a power supply to supply power to the aerosol generating component.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 8’s “electronic aerosol delivery system of claim 7, wherein determining the change in the capacity of the power supply to supply power to the aerosol generating component comprises determining that a value associated with an amount of energy remaining in the power supply has changed with respect to a predefined threshold.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 9’s “wherein the control circuitry is configured to control a supply of power from the power supply to the aerosol generating component in accordance with a power supply parameter specifying an amount of power to be supplied to the aerosol generating component, and wherein determining the change in the capacity . . . comprises determining that the power supply is not able to supply the amount of power specified by the power supply parameter.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 10’s “wherein determining the change in the operation . . . determining a physical characteristic of the aerosol generating component has changed.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 11’s “wherein the at least one operating parameter comprises a parameter controlling the supply of the aerosolizable material to the aerosol generating component.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 12’s “wherein modifying the parameter controlling the supply of aerosolizable material to the aerosol generating component changes a rate at which the aerosolizable material is supplied to the aerosol generating component.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 13’s “wherein modifying the supply of aerosolizable material to the aerosol generating component comprises modifying a composition of the aerosolizable material supplied to the aerosol generating component.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 14’s “wherein modifying the composition of the aerosolizable material supplied to the aerosol generating component comprises modifying a concentration of at least one of. water, an active material, an olfactory component, or an aerosol-forming constituent.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 15’s “wherein the operating parameter comprises a parameter which modifies the air flow path.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 16’s “wherein modifying the air flow path comprises modifying a resistance to draw of air flow through the air flow path.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 17’s “wherein modifying the air flow path comprises modifying a manner in which incident air flowing from the air inlet is directed at the aerosol generating component.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
Claim 18’s “wherein modifying the air flow path comprises modifying a temperature of the aerosol generating component disposed in the air flow path.”
This limitation also falls into the “mathematical concept” and “mental process” groups of abstract ideas for the same reasons as set out for claim 1 above.
As explained in the MPEP and the October 2019 Update, in situations like this where multiple judicial exceptions are recited, Examiners should combine all recited judicial exceptions and treat the claim as containing a single judicial exception for purposes of further eligibility analysis. See MPEP 2106.04 and 2106.05(II). Thus, for purposes of further discussion, the above limitations will be treated as a single abstract idea.
Step 2A Prong Two: This part of the eligibility analysis evaluates whether the claim as a whole integrates the recited judicial exception into a practical application of the exception. This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. 2019 PEG Section III(A)(2), 84 Fed. Reg. at 54-55.
In addition to the abstract idea identified above, claim 1 recites the following limitations 1) “[a]n electronic aerosol delivery system”, 2) “control circuitry configured to . . . monitor at least one operating parameter of the electronic aerosol delivery system”, 3) “control circuitry configured to. . . control at least one control parameter of the electronic aerosol delivery system to generate an aerosol having a first aerosol profile during a first puff”, and 4) “control circuitry configured to . . . generate an aerosol having a second aerosol profile during a subsequent puff.” These additional elements do not integrate the judicial exception into a practical application for the following reasons:
The recitation of “[a]n electronic aerosol delivery system” merely links the abstract idea to a particular field of use or technology environment. See MPEP 2106 (explaining “[a]n abstract idea does not become nonabstract by limiting the invention to a particular field of use or technological environment”). The courts have made it clear that mere physicality or tangibility of an additional element or elements is not a relevant consideration in the eligibility analysis. See MPEP 2106.05(I).
The recitation of “control circuitry” is disclosed as being performed by a generic controller or processor, Specification at 19 l. 13–p. 20 l.6, and is recited so generically that it represents no more than mere instructions to apply the judicial exceptions. It can also be viewed as nothing more than an attempt to generally link the use of the judicial exceptions to the technological environment of a generic controller within an aerosol delivery system.
The recitation of “control circuitry configured to . . . monitor at least one operating parameter of the electronic aerosol delivery system” captures sensors or monitoring devices configured obtain information about the aerosol delivery system. Specification at 39 ll. 3–9. This additional element represents mere data gathering that is necessary for use of the recited judicial exception and is recited at a high level of generality. Accordingly, this limitation is thus insignificant extra-solution activity. See MPEP 2106.05(g).
The recitation of “control circuitry configured to. . . control at least one control parameter of the electronic aerosol delivery system to generate an aerosol having a first aerosol profile during a first puff” amounts to mere instructions to apply the judicial exception generically claims the use of the aerosol delivery device which is necessary to for the monitoring of the operating parameter. It can also be viewed as nothing more than an attempt to generally link the use of the judicial exceptions to the technological environment of a generic controller within an aerosol delivery system.
The recitation of “control circuitry configured to . . . generate an aerosol having a second aerosol profile during a subsequent puff” is also insignificant extra-solution activity. See MPEP 2106.05(g) (explaining that a similar example of “cutting hair after first determining the hair style” amounted to an insignificant application of the abstract idea.) and MPEP 2106.05(f) (explaining that “[t] he recitation of claim limitations that attempt to cover any solution to an identified problem with no restriction on how the result is accomplished and no description of the mechanism for accomplishing the result, does not integrate a judicial exception into a practical application or provide significantly more because this type of recitation is equivalent to the words "apply it").
Claim 23 recites the following limitations in addition to the abstract idea 1) “control circuitry for an electronic aerosol delivery system”; 2) “at least one processor and memory configured to …monitor at least one operating parameter of the electronic aerosol delivery system”; 3) at least one processor and memory configured to …control at least one control parameter of the electronic aerosol delivery system to generate an aerosol having a first aerosol profile during a first puff; 4) at least one processor and memory configured to … generate an aerosol having a second aerosol profile during a subsequent puff.” These additional elements do not integrate the judicial exception into a practical application for substantially the same reason set out above.
Some of the dependent claims recite additional features which are not abstract, e.g., claim 6’s “wherein the electronic aerosol delivery system further comprises an aerosol generating component,” claim 11’s “wherein aerosolizable material is supplied to the aerosol generating component from a supply of aerosolizable material,” and claim 15’s “wherein the electronic aerosol delivery system comprises an air flow path between an air inlet and an air outlet, wherein the aerosol generating component is disposed within the air flow path.” However, the dependent claims do not meaningfully limit abstract idea to a particular machine but merely indicate a field of use. See MPEP 2106.05(h) (explaining “limitations that amount to merely indicating a field of use or technological environment in which to apply a judicial exception do not amount to significantly more than the exception itself, and cannot integrate a judicial exception into a practical application.”)
Therefore, Step 2A, Prong Two is satisfied because claim 1 fails to recite additional elements that integrate the judicial exception into a practical application. Accordingly, analysis under Step 2B may be found in the following section.
Step 2B: This part of the eligibility analysis evaluates whether the claim as a whole amount to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim. MPEP 2106.05. While similar to Step 2A Prong Two, Step 2B goes further by taking into account whether or not the extra-solution activity is well-known See MPEP 2106.05(g). The following Table provides evidence demonstrating that the features recited in addition to the abstract idea were well known.
LIMITATION
EVIDENCE
Claim 1’s “[a]n electronic aerosol delivery system”
Specification at 1 ll. 10–15;
US 20160213066’s [0037];
US 20160242466’s Fig. 1; and
US 20180303161’s Figs. 1a–1d.
Claim 1’s “control circuitry configured to . . . monitor at least one operating parameter of the electronic aerosol delivery system”
Specification at 1 ll. 30–35;
US 20160213066’s [0039–41];
US 20160242466’s Fig. 2 and [0039–41]; and
US 20180303161’s [0138–139].
Claim 1’s “control circuitry configured to. . . control at least one control parameter of the electronic aerosol delivery system to generate an aerosol having a first aerosol profile during a first puff”
Specification at 19 l. 13–p. 20 l.6 (explaining “control circuitry” is performed by a generic controller or processor);
Specification at 2 ll. 6–16;
US 20160213066’s [0049–51];
US 20160242466’s Fig. 2 and [0050–54]; and
US 20180303161’s [0146–157].
Claim 1’s “control circuitry configured to . . . generate an aerosol having a second aerosol profile during a subsequent puff”
Specification at 19 l. 13–p. 20 l.6 (explaining “control circuitry” is performed by a generic controller or processor);
Specification at 2 ll. 6–16;
US 20160213066’s [0049–51];
US 20160242466’s Fig. 2 and [0050–54]; and
US 20180303161’s Figs. 6a–6b [0157–160] and [0175].
Claim 6’s “wherein the electronic aerosol delivery system further comprises an aerosol generating component”
Specification at 1 ll. 13–15;
US 20160213066’s [0035];
US 20160242466’s [0035–36]; and
US 20180303161’s [0134–135].
Claim 11’s “wherein aerosolizable material is supplied to the aerosol generating component from a supply of aerosolizable material”
Specification at 1 ll. 13–15;
US 20160213066’s [0035];
US 20160242466’s [0035]; and
US 20180303161’s [0134–135].
Claim 15’s “wherein the electronic aerosol delivery system comprises an air flow path between an air inlet and an air outlet, wherein the aerosol generating component is disposed within the air flow path”
Specification at 1, ll. 20–30;
US 20160213066’s Fig. 1 and [0041];
US 20160242466’s Fig. 1 and [0043]; and
US 20180303161’s [0125].
Claim 23’s “control circuitry for an electronic aerosol delivery system” and “at least one processor and memory”
Specification at 19 l. 13–p. 20 l.6 (explaining “control circuitry” is performed by a generic controller or processor);
Specification at 2 ll. 6–16;
US 20160213066’s [0039–41];
US 20160242466’s Fig. 2 and [0039–41]; and
US 20180303161’s Figs. 6a–6b, [0057], [0125].
Claim 23’s “at least one processor and memory configured to …monitor at least one operating parameter of the electronic aerosol delivery system”
Specification at 19 l. 13–p. 20 l.6 (explaining “control circuitry” is performed by a generic controller or processor);
Specification at 1 ll. 30–35;
US 20160213066’s [0039–41];
US 20160242466’s Fig. 2 and [0039–41]; and
US 20180303161’s Figs. 6a–6b, [0057], [0157–160], and [0175].
Claim 23’s “at least one processor and memory configured to …control at least one control parameter of the electronic aerosol delivery system to generate an aerosol having a first aerosol profile during a first puff”
Specification at 2 ll. 6–16;
US 20160213066’s [0049–51];
US 20160242466’s Fig. 2 and [0050–54]; and
US 20180303161’s Figs. 6a–6b [0157–160] and [0175].
Claim 23’s “at least one processor and memory configured to … generate an aerosol having a second aerosol profile during a subsequent puff”
Specification at 2 ll. 6–16;
US 20160213066’s [0049–51];
US 20160242466’s Fig. 2 and [0050–54]; and
US 20180303161’s Figs. 6a–6b [0157–160] and [0175].
As demonstrated above, those features recited in addition to the abstracts idea remain insignificant extra-solution activity even upon reconsideration because the features were well-known, routine, and conventional at the time of filing.
Accordingly, claims 1–23 are not patent eligible under 35 U.S.C. 101 because the claims do not amount to significantly more than the recited exceptions identified above.
Claim Rejections - 35 USC § 112
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 2 and 6-18 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.
Claims 2 and 6 recite the limitation “an aerosol generating component”. However, this element was already recited in claim 1. Therefore, it is unclear if this is the same aerosol generating component, or a new (second or third) aerosol generating component. For purposes of examination, it is presumed that the aerosol generating component of claims 2 and 6 is the same as the aerosol generating component of claim 1. Therefore claims 2 and 6 should recite “the aerosol generating component”.
Claims 2 and 11-14 recite “aersolizable material”. It is unclear if this is the same “aerosolisable material” recited in claim 1 or a new material (emphasis added).
Claims 7-18 are rejected insomuch that they depend upon a rejected claim.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-23 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by WO2017001817A1 (hereinafter DICKENS). US 20180184711 A1 relied upon for citations. DICKENS was made of record on applicant’s information disclosure statement filed November 7, 2022.
Regarding claim 1, DICKENS discloses an aerosol delivery device with a control circuitry (abstract). DICKENS discloses an electronic aerosol delivery system (Fig. 1, e-cigarette 10, ¶22), comprising: control circuitry (Fig. 2, control circuitry 550, ¶31), an aerosol generating component (Fig. 1, cartomizer 30, ¶22). DICKENS discloses a supply of aerosolisable material to the aerosol generating component (¶22). DICKENS discloses wherein the control circuitry is configured to: monitor at least one operating parameter of the electronic aerosol delivery system (¶53-¶55). DICKENS discloses that the device control at least one control parameter of the electronic aerosol delivery system to generate an aerosol having a first aerosol profile during a first puff (¶10-¶11) wherein the at least one control parameter is controllable by a user and/or the control circuitry (¶48). DICKENS discloses that when the user puffs on the mouthpiece airflow passes through the passage through the e-cigarette and combines/mixes with the vapor to be inhaled by the user (¶28). DICKENS discloses determine a change in one or more of the at least one operating parameter (¶48). DICKENS that the control circuitry can be implemented to control the device between different operating us modes based on signaling received, here the airflow sensor and/or accelerometer are the parameter (¶48). DICKENS further discloses and in response to determining the change in one or more of the at least one operating parameter, to modify a control parameter of the at least one control parameter of the electronic aerosol delivery system to generate an aerosol having a second aerosol profile during a subsequent puff (¶48-¶49). DICKENS discloses that the cigarette can operate in many different modes based on inputs from pressure sensors and to maintain safety of the device or operatre within a predefined period of time (¶49).
Regarding claim 2, DICKENS discloses the electronic aerosol delivery system of claim 1 as discussed above. DICKENS further discloses wherein each of the at least one operating parameter and the at least one control parameter is associated with one of the following aspects of operation: supply of power to an aerosol generating component (¶43, DICKENS discloses that the device will be supplied power under the control of the control circuitry and that the power can be cut automatically ¶49), control of airflow in the electronic aerosol delivery system (¶50, ¶52), supply of aerosolizable material to the aerosol generating component (¶24), or another aspect of operation of the electronic aerosol delivery system (¶48). Since the limitation includes the recitation of “or” only one limitation of the list is required to read upon the claim. DICKENS further discloses wherein the control parameter modified by the control circuitry is associated with a different aspect of operation than that of the one or more of the at least one operating parameter determined to have changed (¶48-¶49).
Regarding claim 3, DICKENS discloses the electronic aerosol delivery system of claim 1 as discussed above. DICKENS further discloses wherein the control parameter is modified in a manner which mitigates against a change in one or more characteristics of the first aerosol profile resulting from the change in the one or more of the at least one operating parameter (¶5, ¶84). DICKENS discloses that the control circuitry monitor ambient pressure changes to prevent unintended activation of the heater (¶5)
Regarding claim 4, DICKENS discloses the electronic aerosol delivery system of claim 3 as discussed above. DICKENS further discloses wherein the first aerosol profile comprises a plurality of aerosol characteristics, and wherein the control parameter is selected to mitigate against a change in one or more of the plurality of aerosol characteristics, and wherein the one or more of the plurality of aerosol characteristics are selected from the plurality of aerosol characteristics based on a predetermined priority ranking of the plurality of aerosol characteristics. This is rejected for the same reasons as discussed in claim 3. DICKENS further discloses that the control circuitry is configured to process the signals (plural) from the pressure sensor (¶52). DICKENS discloses that these signals are measured by comparing a current pressure with a running average (¶52). This average combined with a time of running determines if there is an airflow event and will determine the mode then selected (¶52-¶53). DICKENS discloses that in response different modes are entered, including safe mode (¶49, ¶54) to prevent (i.e. mitigate) supply of power to the heating element so that no vapor is generated. This processing of signals and choosing a best mode is considered to read upon the limitation of ranking aerosol characteristics.
Regarding claim 5, DICKENS discloses the electronic aerosol delivery system of claim 4 as discussed above. DICKENS further discloses wherein the predetermined priority ranking of the plurality of aerosol characteristics is associated with a specific user of the electronic aerosol delivery system. DICKENS discloses a tapping event (considered to be another characteristic) (¶51). The tapping event is able to associate the user with the device and the control circuitry is configured to determine when a tapping event has occurred and will then determine the intended threshold (¶51)
Regarding claim 6, DICKENS discloses the electronic aerosol delivery system of claim 1 as discussed above. DICKENS further discloses wherein the electronic aerosol delivery system further comprises an aerosol generating component (Fig. 1, cartomizer 30, ¶22), and wherein determining the change in the one or more of the at least one operating parameter comprises determining a change in an operating parameter of the aerosol generating component (¶52).
Regarding claim 7, DICKENS discloses the electronic aerosol delivery system of claim 6 as discussed above. DICKENS further discloses wherein determining the change in the operating parameter of the aerosol generating component comprises determining a change in a capacity of a power supply to supply power to the aerosol generating component (¶51-¶54).
Regarding claim 8, DICKENS discloses the electronic aerosol delivery system of claim 7 as discussed above. DICKENS further discloses wherein determining the change in the capacity of the power supply to supply power to the aerosol generating component comprises determining that a value associated with an amount of energy remaining in the power supply has changed with respect to a predefined threshold (¶6) Specifically regulating the power system to avoid unintentional usage and use of power supply (¶6). Also the control circuit will regulate the power configured to be supplied from the battery (¶49).
Regarding claim 9, DICKENS discloses the electronic aerosol delivery system of claim 7 as discussed above. DICKENS further discloses wherein the control circuitry is configured to control a supply of power from the power supply to the aerosol generating component in accordance with a power supply parameter specifying an amount of power to be supplied to the aerosol generating component (¶49, zero power is considered an amount in standby mode the power is cut, but in safe mode power is cut and auto activation cannot occur), and wherein determining the change in the capacity of the power supply to supply power to the aerosol generating component comprises determining that the power supply is not able to supply the amount of power specified by the power supply parameter (¶49-¶50. See also ¶66, ¶84).
Regarding claim 10, DICKENS discloses the electronic aerosol delivery system of claim 7 as discussed above. DICKENS further discloses wherein determining the change in the operation of the aerosol generating component comprises determining a physical characteristic of the aerosol generating component has changed (¶52).
Regarding claim 11, DICKENS discloses the electronic aerosol delivery system of claim 2 as discussed above. DICKENS further discloses wherein aerosolizable material is supplied to the aerosol generating component from a supply of aerosolizable material (¶22), and wherein the at least one operating parameter comprises a parameter controlling the supply of the aerosolizable material to the aerosol generating component (¶29).
Regarding claim 12, DICKENS discloses the electronic aerosol delivery system of claim 11 as discussed above. DICKENS further discloses wherein modifying the parameter controlling the supply of aerosolizable material to the aerosol generating component changes a rate at which the aerosolizable material is supplied to the aerosol generating component. Since DICKENS discloses that the control circuitry is configured to control an operating mode of the cigarette based on signals (¶34) DICKENS reads on this claim. Further DICKENS discloses that appropriate values will determine corresponding air flow rates (¶52-¶53). Different airflow rates and control modes will result in changed rates of material supplied to the aerosol generating component.
Regarding claim 13, DICKENS discloses the electronic aerosol delivery system of claim 11 as discussed above. DICKENS further discloses wherein modifying the supply of aerosolizable material to the aerosol generating component comprises modifying a composition of the aerosolizable material supplied to the aerosol generating component. (¶51-¶54, the composition is modified when the total amount supplied is modified). Further DICKENS discloses that the supply of material can be changed by changing out the cartomizer (¶22) and that in some implementations the source liquid may comprise other flavorings (¶22-¶23) or even separate pieces (¶29). All of these customizations would modify the composition of the material supplied to the component.
Regarding claim 14, DICKENS discloses the electronic aerosol delivery system of claim 13 as discussed above. DICKENS further discloses wherein modifying the composition of the aerosolizable material supplied to the aerosol generating component comprises modifying a concentration of at least one of: water, an active material, an olfactory component, or an aerosol-forming constituent (¶22, ¶29)
Regarding claim 15, DICKENS discloses the electronic aerosol delivery system of claim 2 as discussed above. DICKENS further discloses wherein the electronic aerosol delivery system comprises an air flow path (¶26) between an air inlet (¶26-¶27) and an air outlet (¶24), wherein the aerosol generating component is disposed within the air flow path, and wherein the operating parameter comprises a parameter which modifies the air flow path. Modifying the time the airflow path is open/energized broadly reads upon modifying the airflow path (¶50). Further a change of pressure (operating parameter) in the air flow path is a change that broadly modifies the air flow path because retention time is changed.
Regarding claim 16, DICKENS discloses the electronic aerosol delivery system of claim 15 as discussed above. DICKENS further discloses wherein modifying the air flow path comprises modifying a resistance to draw of air flow through the air flow path (¶52). A change in the airflow pressure in the airflow path and then the device taking action to prevent a threshold pressure excess level is a modified air flow path.
Regarding claim 17, DICKENS discloses the electronic aerosol delivery system of claim 15 as discussed above. DICKENS further discloses wherein modifying the air flow path comprises modifying a manner in which incident air flowing from the air inlet is directed at the aerosol generating component (¶52). Changing operating modes based on pressure changes the manner in which incident air flowing from the inlet is directed because if the power is not on, aerosol will not be generated for inhaling.
Regarding claim 18, DICKENS discloses the electronic aerosol delivery system of claim 15 as discussed above. DICKENS further discloses wherein modifying the air flow path comprises modifying a temperature of the aerosol generating component disposed in the air flow path (¶53). Entering standby or safe mode cuts power to the heating element and therefore the temperature is modified (¶49, ¶64, ¶68)
Regarding claim 19, DICKENS discloses the electronic aerosol delivery system of claim 1 as discussed above. DICKENS further discloses wherein the control circuitry is further configured to determine how to modify the control parameter using a model which relates one or more operating parameters to one or more aerosol characteristics, and wherein the one or more operating parameters comprise at least one control parameter (Fig. 5). The flow diagram is considered to be a model that related operating parameters to aerosol characteristics and takes action to enter various modes (¶56-¶78)
Regarding claim 20, DICKENS discloses the electronic aerosol delivery system of claim 19 as discussed above. DICKENS further discloses wherein the model is parameterized using experimental data describing how at least one aerosol characteristic of an aerosol generated by the electronic aerosol delivery system varies as a function of different operating parameter values (Fig. 5, ¶58). Fig 5 illustrates obtaining new information (experimental data) and modifying the inhalation.
Regarding claim 21, DICKENS discloses the electronic aerosol delivery system of claim 1 as discussed above. DICKENS further discloses wherein the control circuitry is further configured to determine how to modify the control parameter using a classifier which takes at least one operating parameter value as an input (¶4), and returns at least one control parameter value as an output (¶4). The pressure sensor detecting flow is considered “a classifier”. Depending on the flow detected, the control circuitry will control a parameter value as an output to power the device on, go to standby, or safe mode (Fig. 5)..
Regarding claim 22, DICKENS discloses the electronic aerosol delivery system of claim 21 as discussed above. DICKENS further discloses wherein the classifier is trained using usage data describing a relationship between one or more operating parameter changes and one or more control parameter changes determined by one or more users in response to the one or more operating parameter changes (Fig. 5). DICKENS discloses that the parameters have the ability to sense airflow reduction and then make a change (see S5 in Fig. 1, ¶65-¶67).
Regarding claim 23, DICKENS discloses an aerosol delivery device with a control circuitry (abstract). DICKENS discloses control circuitry (Fig. 2, control circuitry 550, ¶31) for an electronic aerosol delivery system (Fig. 1, e-cigarette 10, ¶35), comprising: at least one processor (microcontroller ¶31) and memory (¶9, DICKENS discloses that events are triggered therefore the circuitry has memory to enable processes as shown in Fig. 5) configured to: monitor at least one operating parameter (¶53-¶55) of the electronic aerosol delivery system; control at least one control parameter of the electronic aerosol delivery system to generate an aerosol having a first aerosol profile during a first puff, wherein the at least one control parameter is controllable by a user and/or the control circuitry (¶10-¶11); determine a change in one or more of the at least one operating parameter; and modify, in response to determining change in the one or more of the at least one operating parameter, a control parameter of the at least one control parameter of the electronic aerosol delivery system to generate an aerosol having a second aerosol profile during a subsequent puff (Fig. 5).
Response to Arguments
Applicant's arguments filed January 2, 2026 have been fully considered but they are not persuasive. A second non-final has been issued to record a prior art rejection in addition to maintaining the 101 rejection mailed in the Non-final sent October 2, 2025.
Applicant argues, “The purpose of monitoring the operating parameters (and modifying the control parameters accordingly) is to mitigate against actual or predicted changes in one or more characteristics in the aerosol profile (as configured/desired by the user).” This is not a statement that is persuasive that the claimed invention is patent eligible under 35 USC 101 because this is still a monitoring and determining which are mental processes.
Applicant argues, “the Examiner completely ignores how the control circuitry generates an aerosol as recited in independent claims 1 and 23. In this regard, the claims are not merely manipulating data as a mathematical concept, and are instead applied to a physical object. Additionally, the control settings affect the operation of the aerosol provision device.” A 101 rejection remains proper when subject ineligible material as detailed above is applied to a known generic device. Here applicant has attempted to overcome the rejection by adding structure to the claims namely, “an aerosol generating component, and a supply of aerosolisable material to the aerosol generating component” however, this is generic to the art as nearly all aerosol generating systems will necessarily have “an aerosol generating component” and “a supply of aersolisable material”. There is nothing inventive regarding the structure and then the application of the controller is patent ineligible as detailed above. The inclusion of generic physical hardware does not overcome a proper 101 rejection. Examiner has not ignored that the control circuitry generates an aerosol, however this is done by a generic device and application of a controller. As detailed in the 101 rejection above, an aerosol generating system (physical hardware) is notoriously well known to have controllers that control the device see the limitation/evidence chart.
Conclusion
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/STEPHANIE LYNN MOORE/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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