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 10/4/2025 have been fully considered but they are not persuasive.
The applicant appears to argue that what is taught by Dagnello is an assessment of a single inhalation by a user, and that is has no concern with inter-inhalation properties relating to the temporal arrangement of inhalation actions. It is further argued that Dagnello does not teach of an assessment that gathers and assesses the timing arrangement of a user’s inhalations. It is assumed that the applicant is specifically arguing the limitation, “wherein an inter-inhalation property comprises one or more selected from the list consisting of: a number of inhalation actions within a chosen period, a frequency of inhalation actions within a chosen period, a distribution of inhalation actions within a chosen period; and a pattern of inhalation actions within a chosen period.”
The examiner respectfully disagrees. The claim is drafted such that one of the inter-halation properties is used to provide feedback. Two of those refer to a number of inhalation actions within a chosen period of time and a frequency of inhalation actions within a chosen period of time. Dagnello clearly teaches in par. 7 that in order to optimize the efficacy of a delivery device, a feedback mechanism would need to be based on actual usage (e.g., date, time and frequency). Each of these properties, as claimed, are clearly within a specific chosen time, which could include just one time period. Further, pars. 65-69, 93 teach that the system generates and captures two types of descriptive inhalation data, includes a machine learning system to identify patterns…. to describe, to predict and to gain new insights, and records user inhalation behavior over time/frequency of inhalation. Par. 91 also teaches of collecting data such as frequency of use (the very definition of frequency of use includes an action within a chosen period of time). Based on this alone, Dagnello clearly teaches the claimed invention.
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 21 and 22 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.
In claim 21, line 2, the “obtaining processor” lacks antecedent basis.
In claim 22, line 2, the “obtaining processor” lacks antecedent basis.
Claim Rejections - 35 USC § 102
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 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, 5, 7-10, 20-23, 27, 29-30, 38 and 39 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dagnello et al. (2019/0167927).
With regard to claim 1, Dagnello teaches a user feedback system for a user of a delivery device within a delivery ecosystem (Pars. 2, 3, 7, 11 – vapor inhalation devices with real-time feedback), comprising:
a sensor platform comprising at least a first sensor operable to detect at least a first physical property associated with at least a first user inhalation action, wherein the at least each physical property comprises an inter-inhalation property (Pars. 10, 11, 47, 63, 73 – the sensors relay data that can reflect the physical nature of an individual’s actual, in-use inhalation of vapor by the consumer);
and an estimation processor adapted to identify a corresponding feedback action based at least in part on the at least first physical property (Pars. 11-14, 75, 92 - a processor is configured to analyze the characteristics of the vapor and the physiological data to generate an output);
and a feedback processor adapted to select a feedback action identified by the estimation processor, and cause a modification of one or more operations of the delivery device according to the selected feedback action (Pars. 11, 12, 14, - the feedback system includes software that causes adjustments to be made to the solid or liquid substance prior to a subsequent conversion into vapor form. A processor is configured to analyze the characteristics of the vapor and the physiological data to generate an output. Logic circuitry is configured to receive stored outputs and the physiological data and to generate an output that causes an adjustment to be made in the quantity of a tangible substance introduced into the receptacle, in at least one of the substance characteristics, or to a time duration or time period of usage of the vapor inhalation device. Thus, the system is identifying the needed feedback (estimation processor), and then selecting and triggering that change in device (feedback processor)),
wherein an inter-inhalation property comprises one or more selected from the list consisting of:
a number of inhalation actions within a chosen period,
a frequency of inhalation actions within a chosen period,
a distribution of inhalation actions within a chosen period;
and a pattern of inhalation actions within a chosen period (Pars. 4, 7 - In order to improve the overall efficacy of the vaping products, the system takes into account variables such as the amount of vapor and/or active ingredient provided (a distribution of inhalation), the consumer’s behavior of usage (such as frequency, timing, amount). Each of these are clearly within a specific chosen time, which could include just one time period. Further, pars. 65-69, 93 teach that the system generates and captures two types of descriptive inhalation data, includes a machine learning system to identify patterns…. to describe, to predict and to gain new insights, and records user inhalation behavior over time/frequency of inhalation. Par. 91 also teaches of collecting data such as frequency of use (the very definition of frequency of use includes an action within a chosen period of time). It is noted, that even though Dangello appears to teach each of the claimed elements, the claim is drafted such that only one of the elements needs to be taught (“one or more”)).
With regard to claim 5, Dagnello teaches the user feedback system according to claim 1, wherein the at least first physical property comprises the inter-inhalation property (see claim 1 rejection), and an intra-inhalation property, the intra-inhalation property comprising one or more selected from the group consisting of:
a duration, a volume, an average airflow, a peak airflow, an airflow profile, an active ingredient ration, and an active ingredient delivery timing (Pars. 7, 11, 12, 69-72, 75 – the system includes an airflow meter, and collects data such as inhaled volume of air and units of time. It also includes a BRAD and VID airflow profiles. Par. 66 teaches peak airflow. It is noted, that even though Dangello appears to teach each of the claimed elements, the claim is drafted such that only one of the elements needs to be taught (“one or more”)).
With regard to claim 7, Dagnello teaches the user feedback system according to claim 1, wherein the chosen period is one selected from the group consisting of:
a predetermined number of minutes, an hour, a day, a period responsive to an active ingredient half-life within a human body, and a period corresponding to an average time taken to smoke a conventional cigarette (Pars. 7, - teach that the efficacy is optimized by delivering vapor accurately with an integrated consumer feedback mechanism based on actual usage (e.g., date, time, and frequency. The date would correspond to a day, and would also strongly imply a predetermined number of minutes, and an hour. Further, Fig. 3 teaches profiles over a period of time, which also strongly implies at least a predetermined number of minutes, and an hour. Par. 69 teaches that the system analyzes repeated inhalations over a period of time, which would also imply a predetermined number of minutes. It is noted, that even though Dangello appears to teach each of the claimed elements, the claim is drafted such that only one of the elements needs to be taught (“one selected”)).
With regard to claim 8, Dagnello teaches the user feedback system according to claim 1, wherein the sensor platform is located at least in part on one or more selected from the group consisting of:
the delivery device; a mobile phone; a docking station for the delivery device; and a wearable fitness device (Pars. 37, 62 - teaches a mobile device, a computer and a wearable device. It is noted, that even though Dangello appears to teach each of the claimed elements, the claim is drafted such that only one of the elements needs to be taught (“one or more”)).
With regard to claim 9, Dagnello teaches the user feedback system according to claim 1, wherein the sensor platform comprises one or more selected from the group consisting of:
an airflow rate sensor; an air speed sensor; a dynamic pressure sensor; and a microphone (Par. 62 – teaches that the sensor can be an airflow sensor or pressure sensor. It is noted, that even though Dangello appears to teach each of the claimed elements, the claim is drafted such that only one of the elements needs to be taught (“one or more”)).
With regard to claim 10, Dagnello teaches the user feedback system according to claim 1, wherein the sensor platform comprises a sensor operable to measure two or more physical properties (Pars. 10, 13, 43-49, – teaches of multiple sensors that can measure multiple physical properties).
With regard to claim 20, Dagnello teaches the user feedback system according to claim 1, wherein the delivery ecosystem comprises one or more selected from the group consisting of: one or more delivery devices; one or more mobile terminals; one or more wearable devices; and one or more docking units for the one or more delivery devices (Fig. 5; pars. 37, 69).
With regard to claim 21, Dagnello teaches the user feedback system according to claim 1,wherein functionality of one or more of the obtaining processor, the estimation processor, or a feedback processor is provided at least in part by a remote server (Par. 84 - the user data can be uploaded to the computer server on the cloud).
With regard to claim 22, Dagnello teaches the user feedback system according to claim 1, wherein functionality of one or more of the obtaining processor, the estimation processor, or a feedback processor is provided at least in part by one or more processors located within one or more devices of the delivery ecosystem (Pars. 54, 109 - personal vapor inhalation device (PVID) collects data from onboard sensors).
With regard to claims 23, 27, 29 and 30, the claims recite a method with corresponding limitations of claims 1, 5, 7, and 9, respectively, and are therefore rejected on the same premises.
With regard to claim 38, Dagnello teaches a system comprising at least one processor and memory adapted to perform the method of claim 23 (Par. 12 - the system includes logic circuitry/processor and memory ; See claims 1 and 23 above).
With regard to claim 39, the claim recites a non-transitory computer readable storage medium with the corresponding limitations of claims 1 and 23, and is therefore rejected on the same premise.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 13 and 32 are rejected under 35 U.S.C. 103 as being unpatentable over Dagnello et al. (20190167927), in view of Van De Laar (20170100550).
With regard to claim 13, Dagnello teaches the user feedback system according to claim 1.
Dagnello does not explicitly teach the feedback system processes sensor data to reduce noise.
Van De Laar teaches wherein the feedback system processes sensor data relating to at least a first physical property to reduce noise (Pars. 10, 21, 31, 57 - the processor unit/feedback system processes sensor data and applies noise suppression algorithm for suppressing background noise picked by the sensors).
It would have been obvious to a person skilled in the art at the time the invention was made to have modified Dagnello by incorporating the teaching of Van De Laar so that the feedback system processes sensor data relating to physical property to reduce noise. This would have been obvious since doing so would allow the system to accurately detect and measure the user’s inhalation and improve device performance (Van De Laar, pars. 7 and 11).
With regard to claim 32, the claim recites a method with corresponding limitations of claim 13, respectively, and are therefore rejected on the same premises.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SCOTT T BADERMAN whose telephone number is (571) 272-3644. The examiner can normally be reached 6:00AM - 3:00PM, M-Th., every other Friday off.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, John Cottingham, can be reached at 571-272-1400. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SCOTT T BADERMAN/Supervisory Patent Examiner, Art Unit 2118
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