Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
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.
Claim(s) 1, 3-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ampolini et al. (U.S Pub. No. 2014270727).
Regarding claim 1, Ampolini discloses a method of operating an aerosol generating device comprising:
detecting, using a puff sensor, a puff inhaled by a user [0031];
determining, using the controller, whether a battery level of the device is below a predetermined level [0132].
Ampolini also discloses the indication is generated within a predefined interval after the puff is detected [0130-0131].
Ampolini does not expressly disclose a sensor for determining a positional orientation of the device. Mayle discloses an aerosol generating device comprising a processor determining, using a sensor, a positional orientation; wherein the processor can determine, using the sensor, the device in use and activate other features of the device [0046]. Mayle also discloses the use of Led for indication of the battery level remaining [0035]. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to use a positional orientation sensor of Mayle in the device of Ampolini so that the controller can use the positional orientation sensor to determine the positional orientation of the device and activate other features of the device as taught by Mayle.
The combination of Ampolini and Mayle taken together as whole suggests generating, using the controller, an indication of the battery level to the user conditional upon the determined positional orientation of the device and whether the determined battery-level is below the predetermined level, wherein the indication is generated within a predefined interval after the puff is detected.
Regarding claim 3, since Ampolini discloses determining a positional orientation of the device [0034] and a log for cumulative puff count [0130-0131], it would have been obvious to one of ordinary skill in the art at the time the invention was made that the controller of Ampolini is capable of determining whether a previous indication of the battery-level has been provided according to the determined positional orientation, wherein the indication of the battery-level is provided conditional upon the previous indication.
Regarding claim 4, since Ampolini discloses determining a positional orientation of the device [0034] and a log for cumulative puff count [0130-0131], it would have been obvious to one of ordinary skill in the art at the time the invention was made to make the controller to with conditions such as if the positional orientation of the device is in a first orientation, the previous indication is determined by checking a flag set in a session comprising puffs grouped together according to a configurable rule.
Regarding claim 5, since Ampolini discloses a log for cumulative puff count and the [0130-0131] wherein the indication of the battery-level is provided if the flag indicates that no previous indication has been provided in the session.
Regarding claim 6, since Ampolini discloses a log for cumulative puff count [0130-0131], it would have been obvious to one of ordinary skill in the art at the time the invention was made to have the configurable rule comprises grouping detected puffs into a respective session at least based on an interval between consecutive puffs.
Regarding claim 7, since Mayle discloses the device with can determine a positional orientation of the device and activate other features [0046], it would have been obvious to one of ordinary skill in the art at the time the invention was made to set condition for the controller such as wherein if the positional orientation of the device is in a second orientation, the previous indication is determined by a timestamp.
Regarding claim 8, Ampolini discloses determining whether the previous indication was provided during a preset time period [0130-0131], it would have been obvious as an engineering choice (with limited number of choices) for one of ordinary skill in the art at the time the invention was made for indication of the battery- level is provided only if the previous indication was not provided during the preset time period.
Regarding claim 9, Mayle discloses determining the positional orientation [0046] and indication of the battery-level [0035]; it would have been obvious to one of ordinary skill in the art at the time the invention was made for repeating the indication of the battery-level conditional upon the determined positional orientation.
Regarding claim 10, Ampolini discloses determining, using the controller, whether if a next puff is detected within the predefined interval [0130-0131]; it would have been obvious as an engineering choice (with limited number of choices) for one of ordinary skill in the art at the time the invention was made for generating, using the controller, the indication on the device for the user if the next puff was not detected within the predefined interval.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 10 of copending Application No. 18005247 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because they have overlapping scope of invention.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant’s arguments filed 1/20/2026 have been considered but are moot in view of the new ground of rejection.
Conclusion
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/PHU H NGUYEN/Examiner, Art Unit 1747
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