DETAILED ACTION
Response to Arguments
Applicant's arguments filed 8/10/2026 have been fully considered but they are not persuasive.
Applicant argues “the Office Action's characterization of a high power aerosol-generation mode as another "secondary function" does not follow from Ademe. Ademe affirmatively distinguishes accessory functions of the type controlled by the cited push buttons from power-delivery and aerosol-generation functions. Indeed, Ademe expressly places power-delivery elements among its "primary function elements." (Ademe at [0031].) This disclosure therefore points away from repurposing Ademe's secondary-function control for the materially different purpose of determining the amount of electrical power supplied to the aerosol generator.” The Examiner disagrees. As noted by Applicant, the secondary elements of Ademe are “ancillary”. The power module of Ademe is also ancillary (auxiliary) [0060]. All of these elements of Ademe, including the secondary elements unrelated to aerosol generation and the power module, are optionally attached elements that perform an auxiliary function. For these reasons, one of ordinary skill in the art would have found the Ademe’s teaching of a push button actuator relevant and applicable to the power module.
Applicant argues “The Office Action further states that one of ordinary skill in the art "may not want" the high power mode to be actuated automatically when the power module is connected, and therefore would have configured the device to allow the user to decide when to activate that function. But neither Ademe nor Talbot provides a factual basis for that modification. Ademe's cited user controls operate accessory features that Ademe expressly distinguishes from aerosol-generation and power-delivery functions. Talbot's user input activates the smoking substitute system generally rather than selecting whether supplemental power is applied. Neither reference identifies a reason to withhold a higher-power aerosol-generation mode after connection of the auxiliary power source until an additional user input is received.” The Examiner disagrees. “A person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). In making an obviousness determination one “can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418. As described by Ademe, an optionally attached element that performs an auxiliary function can be configured to occur responsive to user input. One of ordinary skill in the art would recognize that the reason Ademe includes this option is because a user may not want an auxiliary function to immediately operate upon connection and would have found it obvious to apply this concept to the power module auxiliary function for the same reason.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 2, 4, 7, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Ademe (US 2015/0313282) in view of Talbot (US 2022/0211100)
Ademe teaches a non-combustible aerosol provision device comprising: an aerosol generator configured to cause aerosol to be generated from aerosol-generating material [0028]; a first electrical power source for powering the aerosol generator [0030]; the device being connectable to a power module comprising a second electrical power source for supplementing the first electrical power source [0060]. The power module can be attached to the aerosol provision device and forms an electrical connection therewith [0060], i.e. the aerosol provision device comprises a connector for selectively connecting the aerosol provision device to the power module and the connector enables electrical power to be supplied from the power module to the aerosol provision device.
Ademe does not specifically teach the power module powers the aerosol generator and the first and second power modes. Talbot teaches a smoking substitute device wherein an auxiliary power source is configured to supplement the main power supply provided to the vaporizer such that it amplifies the current supplied to the vaporizer by the main power supply and allows the vaporizer to more rapidly increase in temperature than if only the main power supply were provided to the heating element [0024]. In other words, the device is settable in a first power mode when the power module is not connected to the device and is settable in a second power mode different from the first power mode when the power module is connected to the device, wherein the first power mode and the second power mode each determines a supply of electrical power to the aerosol generator, the first power mode is a low power mode and the second power mode is a high power mode, and the high power mode is a mode in which greater electrical power is supplied to the aerosol generator relative to electrical power supplied to the aerosol generator in the low power mode, the power module supplies electrical power to the aerosol generator in the high power mode, and wherein the aerosol generator reaches a higher temperature in the high power mode than in the low power mode. It would have been obvious to one of ordinary skill in the art to apply this configuration to the power module of Ademe for the benefit of more rapidly increasing the temperature of the aerosol generator as suggested by Talbot.
Modified Ademe as applied above teaches a power mode is set to the high-power mode when the power module is connected to the aerosol provision device. It is not taught that it is also responsive to a user input. However, Ademe does teach an embodiment wherein a push button is configured to actuate a secondary function [0050, 0054, 0056], i.e. the secondary function occurs responsive to a user input, wherein the device comprises a user input unit 311 for receiving the user input [0050, Fig. 3] or the user input is received from an accessory housing-side user input unit 620 of an accessory housing [0056, Fig. 6]. It would have been obvious to one of ordinary skill in the art to configure the device of modified Ademe such that a power mode is set to the high-power mode responsive to a user input, wherein the device comprises a user input unit for receiving the user input or the user input is received from a module-side user input unit of the power module, to allow the user to decide when to activate this function.
Regarding the limitation of “so as to provide stronger aerosol per puff in the high power mode”, it is noted that the aerosol-generating material is not a positively recited limitation. Claim 1 merely recites “an aerosol generator configured to cause aerosol to be generated from aerosol-generating material. The actual presence of the aerosol-generating material in the aerosol provision device is not required by the claims. Therefore, any claimed result associated with use of the aerosol-generating material, e.g. “stronger aerosol per puff in the high power mode” is considered intended use of the device and does not distinguish the configuration of the device itself from that of Ademe and Talbot. In any case, Talbot teaches when greater electrical power is supplied to the aerosol generator, the aerosol generator more rapidly increases in temperature [0024]. This is considered to inherently provide a stronger aerosol per puff in the high power mode.
Claims 9, 10 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Ademe and Talbot as applied to claim 1 above, and further in view of Wu (US 2019/0230987)
Ademe teaches the device comprises control circuitry [0028] but does not teach it is configured to detect whether or not the power module is connected to the aerosol provision device. Wu teaches an electronic cigarette [0006] wherein if the voltage detecting circuit detects a voltage, that means the power supply module is coupled with the exterior power supply, so the voltage detecting circuit sends signals to the control unit sends and the control unit receives that signal [0053]. In other words, control circuitry is configured to detect whether or not the power module is connected based on a signal indicating that the power module is connected to the aerosol generating device, and further comprising a voltage detector for detecting a voltage in relation to the connector, wherein the signal is provided by the voltage detector. As this is a conventional detection mechanism known in the art, it would have been obvious to one of ordinary skill in the art to apply to the device of modified Ademe to achieve the same, predictable result of detecting whether or not the power module is connected to the aerosol provision device.
Claims 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Ademe and Talbot as applied to claim 1 above, and further in view of Antonopoulos (US 2021/0386124).
Ademe teaches the device comprises control circuitry [0028] but does not teach it is configured to detect whether or not the power module is connected to the aerosol provision device. Antonopoulos teaches an aerosol-generating device wherein control circuitry is configured to detect whether or not a case is connected to the aerosol provision device based on a signal indicating that the power module is connected to the aerosol generating device, wherein a connector enables data communication between the case and the aerosol provision device, and the signal is received from the case via the connector [0035, 0036, 0039]. It would have been obvious to one of ordinary skill in the art to apply this concept to the aerosol provision device and power module (analogous to the case of Antonopoulos) to achieve the same, predictable result of detecting whether or not the power module is connected to the aerosol provision device.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Ademe and Talbot as applied to claim 3 above, and further in view of Bilat (US 2019/0008209).
Modified Ademe is silent to the power level in watts. Bilat teaches an aerosol generating device wherein a power level of greater than 5 Watts and less than 13 Watts may be used [0078]. As this is a conventional range known in the art, it would have been obvious to one of ordinary skill to use a power level within this range for the modes of modified Ademe, with the high power mode having a higher power level than the lower power mode, to achieve predictable results, e.g. forming an aerosol. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Ademe and Talbot as applied to claim 1 above, and further in view of Mishra (US 2016/0120225).
It is noted that the aerosol-generating material is not a positively recited limitation. Claim 1 merely recites “an aerosol generator configured to cause aerosol to be generated from aerosol-generating material. The actual presence of the aerosol-generating material in the aerosol provision device is not required by the claims. In any case, Ademe teaches the aerosol-generating material comprises a gel [0066]. Ademe teaches the aerosol generator comprises a heater [0045] but does not teach an inductive heater. Mishra teaches an e-vaping device wherein an inductive heater is use to heat and vaporize a gel [0119]. As this is a conventional type of heater known in the art, it would have been obvious to one of ordinary skill in the art to use an inductive heater in the device of modified Ademe to achieve predictable results, e.g. vaporization and aerosol generation.
Claims 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Ademe in view of Talbot and Qiu (US 2019/0133191)
Ademe teaches a non-combustible aerosol provision device comprising: an aerosol generator configured to cause aerosol to be generated from aerosol-generating material [0028]; a first electrical power source for powering the aerosol generator [0030]; the device being connectable to a power module comprising a second electrical power source for supplementing the first electrical power source [0060]. The power module can be attached to the aerosol provision device and forms an electrical connection therewith [0060], i.e. the aerosol provision device comprises a connector for selectively connecting the aerosol provision device to the power module and the connector enables electrical power to be supplied from the power module to the aerosol provision device.
Ademe does not specifically teach the power module powers the aerosol generator and the first and second power modes. Talbot teaches a smoking substitute device wherein an auxiliary power source is configured to supplement the main power supply provided to the vaporizer such that it amplifies the current supplied to the vaporizer by the main power supply and allows the vaporizer to more rapidly increase in temperature than if only the main power supply were provided to the heating element [0024]. In other words, the device is settable in a first power mode when the power module is not connected to the device and is settable in a second power mode different from the first power mode when the power module is connected to the device, wherein the first power mode and the second power mode each determines a supply of electrical power to the aerosol generator, the first power mode is a low power mode and the second power mode is a high power mode, and the high power mode is a mode in which greater electrical power is supplied to the aerosol generator relative to electrical power supplied to the aerosol generator in the low power mode, the power module supplies electrical power to the aerosol generator in the high power mode, and wherein the aerosol generator reaches a higher temperature in the high power mode than in the low power mode. It would have been obvious to one of ordinary skill in the art to apply this configuration to the power module of Ademe for the benefit of more rapidly increasing the temperature of the aerosol generator as suggested by Talbot.
Modified Ademe as applied above teaches a power mode is set to the high-power mode automatically when the power module is connected to the aerosol provision device. It is not taught that the device is configured to, based on an instruction by a user, either operate automatically or responsive to a user input. However, Ademe does teach an embodiment wherein a push button is configured to actuate a secondary function [0050, 0054, 0056], i.e. the secondary function occurs responsive to a user input, wherein the device comprises a user input unit 311 for receiving the user input [0050, Fig. 3] or the user input is received from an accessory housing-side user input unit 620 of an accessory housing [0056, Fig. 6]. Furthermore, Qiu teaches an electronic cigarette configured to, based on an instruction input by a user (via switching key 321), either operate: (i) in an automatic mode such that pressing button 4 is not required to operate the device; or (ii) in a manual mode wherein operation occurs responsive to pressing button 4, such that a user input (pressing the button) is required to set the power mode to the high power mode [0068, 0075-0078].
It would have been obvious to one of ordinary skill in the art to configure the device of modified Ademe such that device is configured to, based on an instruction input by a user, either operate such that: (i) the power mode is automatically set to the high power mode responsive to the power module being connected to the aerosol generating device; or (ii) the power mode is set to the high power mode when the power module is connected to the non-combustible aerosol provision device and responsive to a user input, such that a user input is required to set the power mode to the high power mode. One of ordinary skill in the art would recognize that such a modification would allow the user to choose when to operate in an automatic mode, wherein the high power mode is set automatically upon connection, and when to operate in a manual mode responsive to a user input.
Regarding the limitation of “so as to provide stronger aerosol per puff in the high power mode”, it is noted that the aerosol-generating material is not a positively recited limitation. Claim 1 merely recites “an aerosol generator configured to cause aerosol to be generated from aerosol-generating material. The actual presence of the aerosol-generating material in the aerosol provision device is not required by the claims. Therefore, any claimed result associated with use of the aerosol-generating material, e.g. “stronger aerosol per puff in the high power mode” is considered intended use of the device and does not distinguish the configuration of the device itself from that of Ademe and Talbot. In any case, Talbot teaches when greater electrical power is supplied to the aerosol generator, the aerosol generator more rapidly increases in temperature [0024]. This is considered to inherently provide a stronger aerosol per puff in the high power mode.
Claims 20, 21, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Ademe, Talbot, and Qiu as applied to claim 17 above, and further in view of Wu.
Ademe teaches the device comprises control circuitry [0028] but does not teach it is configured to detect whether or not the power module is connected to the aerosol provision device. Wu teaches an electronic cigarette [0006] wherein if the voltage detecting circuit detects a voltage, that means the power supply module is coupled with the exterior power supply, so the voltage detecting circuit sends signals to the control unit sends and the control unit receives that signal [0053]. In other words, control circuitry is configured to detect whether or not the power module is connected based on a signal indicating that the power module is connected to the aerosol generating device, and further comprising a voltage detector for detecting a voltage in relation to the connector, wherein the signal is provided by the voltage detector. As this is a conventional detection mechanism known in the art, it would have been obvious to one of ordinary skill in the art to apply to the device of modified Ademe to achieve the same, predictable result of detecting whether or not the power module is connected to the aerosol provision device.
Claims 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over Ademe, Talbot, and Qiu as applied to claim 17 above, and further in view of Antonopoulos.
Ademe teaches the device comprises control circuitry [0028] but does not teach it is configured to detect whether or not the power module is connected to the aerosol provision device. Antonopoulos teaches an aerosol-generating device wherein control circuitry is configured to detect whether or not a case is connected to the aerosol provision device based on a signal indicating that the power module is connected to the aerosol generating device, wherein a connector enables data communication between the case and the aerosol provision device, and the signal is received from the case via the connector [0035, 0036, 0039]. It would have been obvious to one of ordinary skill in the art to apply this concept to the aerosol provision device and power module (analogous to the case of Antonopoulos) to achieve the same, predictable result of detecting whether or not the power module is connected to the aerosol provision device.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Ademe, Talbot, and Qiu as applied to claim 17 above, and further in view of Bilat.
Modified Ademe is silent to the power level in watts. Bilat teaches an aerosol generating device wherein a power level of greater than 5 Watts and less than 13 Watts may be used [0078]. As this is a conventional range known in the art, it would have been obvious to one of ordinary skill to use a power level within this range for the modes of modified Ademe, with the high power mode having a higher power level than the lower power mode, to achieve predictable results, e.g. forming an aerosol. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Ademe, Talbot, and Qiu as applied to claim 17 above, and further in view of Mishra.
It is noted that the aerosol-generating material is not a positively recited limitation. Claim 1 merely recites “an aerosol generator configured to cause aerosol to be generated from aerosol-generating material. The actual presence of the aerosol-generating material in the aerosol provision device is not required by the claims. In any case, Ademe teaches the aerosol-generating material comprises a gel [0066]. Ademe teaches the aerosol generator comprises a heater [0045] but does not teach an inductive heater. Mishra teaches an e-vaping device wherein an inductive heater is use to heat and vaporize a gel [0119]. As this is a conventional type of heater known in the art, it would have been obvious to one of ordinary skill in the art to use an inductive heater in the device of modified Ademe to achieve predictable results, e.g. vaporization and aerosol generation.
Conclusion
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.
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/ERIC YAARY/Examiner, Art Unit 1755
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