DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant's arguments filed 6/9/2026 have been fully considered but they are not persuasive.
Applicant argues that cartridges 1411 and 1412 are material storage and dispensing components feeding a vaporizing component under circuit control – they are not independent aerosol generators, each controlled by a separate user input mechanism as required by claim 1.
Examiner respectfully disagrees. CAMERON is not cited for teaching the first user input and second user input for controlling a respective aerosol generator. NIELSEN is cited for disclosing this structural arrangement (See Non-Final Rejection mailed 3/9/2026, paragraph 5). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Examiner further disagrees with Applicants assessment of CAMERON. CAMERON discloses that each cartridge is associated with an individual aerosol generator, 204a, (Paragraph [0091]; Figure 3). Thus, the device of CAMERON also appears to include distinct, individual cartridges having respective aerosol generator that are all controlled by the control circuitry (Paragraphs [0087], [0092]).
Thus, NIELSEN in view of CAMERON teach an aerosol delivery device having a first atomizer coupled to a first user input and a second atomizer connected to a second user input, whereby the amount of the first aerosol is changed and the change the amount of the second aerosol by a corresponding amount.
Applicant further argues that the relationship CAMERON describes in paragraph [0131] differs from the relationship required by claim 1. In CAMERON, as dispensing of the first substance is reduced or increased, one or more replacement substances are released at corresponding amount. That is, a change in dispensing of a first substance triggers a reactive and inverse adjustment to compensate for the change.
As noted above, NIELSEN discloses that each input controls a respective aerosol generator. CAMERON notes that when one aerosol is adjusted in one direction, the other is adjusted by that amount in an inverse direction. The courts have generally held that, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Thus, the automatic triggering of the inverse reaction of the second aerosol generator of CAMERON does not have to be bodily incorporated into the device of NIELSEN. Given that NIELSEN controls each aerosol generator independently by a respective input mechanism, one of ordinary skill in the art would understand that the user would be required to make the adjustments using the appropriate input mehcansims to achieve the teachings of CAMRON.
Applicant argues that the motivation to modify does not support the proposed combination. First, CAMERON describes a compensatory mechanism directed to maintain an overall same amount of vaporizable materials.
It is further argued that even if the skilled person were to apply CAMERON’S compensation concept to NIELSEN, the result would at most be a device in which, the substances would be released without any independent user input to each generator.
Examiner respectfully disagrees. the automatic triggering of the inverse reaction of the second aerosol generator of CAMERON does not have to be bodily incorporated into the device of NIELSEN. Given that NIELSEN controls each aerosol generator independently by a respective input mechanism, one of ordinary skill in the art would understand that the user would be required to make the adjustments using the appropriate input mechanisms to achieve the teachings of CAMRON.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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Claim(s) 1, 2, 4, 5, 8, 9 and 11-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over NIELSEN (US 2017/0251727) in view of THORENS (US 2017/0318861) in view of CAMERON (US 2016/0331036).
With respect to claims 1 and 16, NIELSEN discloses an aerosol delivery device (Abstract; Paragraphs [0005]-[0009]) for generating a first aerosol and a second aerosol using a first atomizer and second atomizer, respectively (Paragraph [0005]). The device comprises an activation arrangement, including a first activation arrangement (e.g., first user input) and a second activation arrangement (e.g., second user input) (Paragraphs [0203], [0233]-[0235]) each configured to control a respective aerosol generator. The signals from the activating arrangements are received by a controller configured to control (Paragraphs [0203]-[0207]). The controller is configured to generate (FASI) a first version (Figures 11A-11C; Paragraphs [0273]-[0276]) of an aerosol having a first property (Abstract; Paragraphs [0033], [0149], [0189], [0219]), such as a particular particle size or the use of nicotine; and the controller is configured to generate (SASI) a second aerosol having a second property (Abstract; Paragraphs [0033], [0149], [0189], [0219]), such as a particular particle size or the use of a buffer or other additive, that is different than the first version.
NIELSEN further discloses a flow sensor (e.g., detection means) (Paragraphs [0138], [0139]) for detecting more than one phase of inhalation, whereby the activation of first and section versions are activated according to different threshold levels of the air flow (Paragraph [0284]-[0286]; Figure 11C).
As seen in figure 11C, the first version may include both the first vapor and second vapor, until a point where airflow drops below a non-zero threshold phase of inhalation is reached. Once below the threshold, the second phase of inhalation occurs.
[AltContent: arrow][AltContent: textbox (Second threshold below first threshold)][AltContent: textbox (Second phase of inhalation after drop below threshold)][AltContent: arrow][AltContent: textbox (First threshold)][AltContent: textbox (First phase of inhalation before threshold)][AltContent: connector][AltContent: connector]
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Such a configuration will allows multiple aerosols to be formed that may deliver particular aerosols to the lungs while others are delivered mostly to the oral cavity (Paragraphs [0008]-[0010]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to configure the device of THORENS to deliver aerosols in the manner taught by NIELSEN so that different aerosols can be delivered to different parts of the user.
Specifically, either a first amount is altered by providing a greater or lesser amount, or changing the aerosol size, for each generator based on the inputs of the first and second inputs.
NIELSEN does not explicitly disclose that the controller comprises control circuitry. THORENS discloses a controller which uses control circuitry for controlling the operations of the device (Paragraphs [0026], [0072], [0073]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention to provide control circuitry with the controller of NIELSEN, as taught by THORENS, so that the controller can control the functions of the device.
NIELSEN does not explicitly disclose that altering the first property causes a first change in the amount of aerosol generated by the first generator and altering the property of the second generator causes a second change in an amount of second aerosol generated, wherein the first and second change are approximately equal. CAMERON discloses an electronic vapor device having a first vaporizer for vaporizing a first material and a second vaporizer for vaporizing a second material. When dispensing the first substance is reduced or increased, one or more replacement substances may be released at a correspondingly increased or decreased amount to compensate for the change in the first substance (Paragraph [0131]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to change the amount of the first aerosol of NIELSEN and to change the second aerosol by a corresponding amount (e.g., approximately equal amount), as taught by CAMERON so that different mixtures of multiple liquids can be admitted.
With respect to claim 2, NIELSEN discloses that the property of the one of the aerosols is the duration of heating (Paragraph [0122], [0123]).
With respect to claim 4, NIELSEN discloses that the different aerosols have different vapor pressures (e.g., different vaporization temperatures) (Paragraphs [0127], [0128]).
With respect to claim 5, NIELSEN discloses that the first input mechanism comprises a button (Paragraph [0193]).
With respect to claim 8, NIELSEN discloses that the selection is from a plurality of selectable states of diameter ranges (Paragraphs [0027]- [0029]).
With respect to claim 9, NIELSEN discloses that the selection is from a plurality of selectable states of diameter ranges (Paragraphs [0028], [0029]) and the number of states is the same between them (Paragraphs [0045] and [0028]).
Specifically, if each state is a tenth of a micron for the first diameter, then there are 5 states of diameters from 0.5 to 1 micron (Paragraph [0028]). If each state is 10 microns for the second diameter, then there are 5 states of diameters from 10 to 50 microns (Paragraph [0045]).
With respect to claim 11, NIELSEN discloses that the aerosol generating materials are liquids (Paragraphs [0013], [0240]).
With respect to claim 12, NIELSEN discloses that the aerosol generating materials are liquids (Paragraphs [0013], [0240]). The first aerosol material is different from the second aerosol material (Paragraphs [0049], [0055]).
With respect to claim 13, NIELSEN discloses that the first generator is a resistive heater (Paragraphs [0021], [0122]).
With respect to claim 14 NIELSEN discloses that the second generator is a resistive heater (Paragraphs [0021], [0123])
With respect to claim 15, NIELSEN discloses that the device comprises a container (e.g., receptacle) for the first aerosolize material and a second container for the second aerosolizable material (Abstract).
With respect to claim 17, NIELSEN discloses that the device comprises a container (e.g., receptacle) for the first aerosolizable material and a second container for the second aerosolizable material (Abstract). The containers are replaceable (e.g., removably attached to the device (Paragraphs [0134], [0137]).
With respect to claim 18, NIELSEN discloses an aerosol delivery device (Abstract; Paragraphs [0005]-[0009]) for generating a first aerosol and a second aerosol using a first atomizer and second atomizer, respectively (Paragraph [0005]). The device comprises an activation arrangement, including a first activation arrangement (e.g., first user input) and a second activation arrangement (e.g., second user input) (Paragraphs [0203], [0233]-[0235]) each configured to controlling a respective aerosol generator. The signals from the activating arrangements are received by a controller configured to control (Paragraphs [0203]-[0207]). The controller is configured to generate (FASI) a first version (Figures 11A-11C; Paragraphs [0273]-[0276]) of an aerosol having a first property (Abstract; Paragraphs [0033], [0149], [0189], [0219]), such as a particular particle size or the use of nicotine; and the controller is configured to generate (SASI) a second aerosol having a second property (Abstract; Paragraphs [0033], [0149], [0189], [0219]), such as a particular particle size or the use of a buffer or other additive, that is different than the first version.
NIELSEN further discloses a flow sensor (e.g., detection means) (Paragraphs [0138], [0139]) for detecting more than one phase of inhalation, whereby the activation of first and section versions are activated according to different threshold levels of the air flow (Paragraph [0284]-[0286]; Figure 11C).
As seen in figure 11C, the first version may include both the first vapor and second vapor, until a point where airflow drops below a non-zero threshold phase of inhalation is reached. Once below the threshold, the second phase of inhalation occurs.
[AltContent: arrow][AltContent: textbox (Second threshold below first threshold)][AltContent: textbox (Second phase of inhalation after drop below threshold)][AltContent: arrow][AltContent: textbox (First threshold)][AltContent: textbox (First phase of inhalation before threshold)][AltContent: connector][AltContent: connector]
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Such a configuration will allows multiple aerosols to be formed that may deliver particular aerosols to the lungs while others are delivered mostly to the oral cavity (Paragraphs [0008]-[0010]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to configure the device of THORENS to deliver aerosols in the manner taught by NIELSEN so that different aerosols can be delivered to different parts of the user.
Specifically, either a first amount is altered by providing a greater or lesser amount, or changing the aerosol size, for each generator based on the inputs of the first and second inputs.
NIELSEN does not explicitly disclose that the controller comprises control circuitry. THORENS discloses a controller which uses control circuitry for controlling the operations of the device (Paragraphs [0026], [0072], [0073]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention to provide control circuitry with the controller of NIELSEN, as taught by THORENS, so that the controller can control the functions of the device.
NIELSEN discloses that the inputs are identified (Paragraphs [0272], [0273]) then the properties of each aerosol is adjusted when the inputs are received.
NIELSEN does not explicitly disclose that altering the first property causes a first change in the amount of aerosol generated by the first generator and altering the property of the second generator causes a second change in an amount of second aerosol generated, wherein the first and second change are approximately equal. CAMERON discloses an electronic vapor device having a first vaporizer for vaporizing a first material and a second vaporizer for vaporizing a second material. When dispensing the first substance is reduced or increased, one or more replacement substances may be released at a correspondingly increased or decreased amount to compensate for the change in the first substance (Paragraph [0131]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to change the amount of the first aerosol of NIELSEN and to change the second aerosol by a corresponding amount (e.g., approximately equal amount), as taught by CAMERON so that different mixtures of multiple liquids can be admitted.
With respect to claim 19, NIELSEN discloses an aerosol delivery device (e.g., provision means) (Abstract; Paragraphs [0005]-[0009]) for generating a first aerosol and a second aerosol using a first atomizer and second atomizer, respectively (Paragraph [0005]). The device comprises an activation arrangement, including a first activation arrangement (e.g., first input means) and a second activation arrangement (e.g., second input means) (Paragraphs [0203], [0233]-[0235]) each configured to control a respective aerosol generator. The signals from the activating arrangements are received by a controller configured to control (Paragraphs [0203]-[0207]). The controller is configured to generate (FASI) a first version (Figures 11A-11C; Paragraphs [0273]-[0276]) of an aerosol having a first property (Abstract; Paragraphs [0033], [0149], [0189], [0219]), such as a particular particle size or the use of nicotine; and the controller is configured to generate (SASI) a second aerosol having a second property (Abstract; Paragraphs [0033], [0149], [0189], [0219]), such as a particular particle size or the use of a buffer or other additive, that is different than the first version.
NIELSEN further discloses a flow sensor (e.g., detection means) (Paragraphs [0138], [0139]) for detecting more than one phase of inhalation, whereby the activation of first and section versions are activated according to different threshold levels of the air flow (Paragraph [0284]-[0286]; Figure 11C).
As seen in figure 11C, the first version may include both the first vapor and second vapor, until a point where airflow drops below a non-zero threshold phase of inhalation is reached. Once below the threshold, the second phase of inhalation occurs.
[AltContent: arrow][AltContent: textbox (Second threshold below first threshold)][AltContent: textbox (Second phase of inhalation after drop below threshold)][AltContent: arrow][AltContent: textbox (First threshold)][AltContent: textbox (First phase of inhalation before threshold)][AltContent: connector][AltContent: connector]
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Such a configuration will allows multiple aerosols to be formed that may deliver particular aerosols to the lungs while others are delivered mostly to the oral cavity (Paragraphs [0008]-[0010]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to configure the device of THORENS to deliver aerosols in the manner taught by NIELSEN so that different aerosols can be delivered to different parts of the user.
Specifically, either a first amount is altered by providing a greater or lesser amount, or changing the aerosol size, for each generator based on the inputs of the first and second inputs.
NIELSEN does not explicitly disclose that the controller comprises control circuitry (e.g., control means). THORENS discloses a controller which uses control circuitry for controlling the operations of the device (Paragraphs [0026], [0072], [0073]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention to provide control circuitry with the controller of NIELSEN, as taught by THORENS, so that the controller can control the functions of the device.
NIELSEN does not explicitly disclose that altering the first property causes a first change in the amount of aerosol generated by the first generator and altering the property of the second generator causes a second change in an amount of second aerosol generated, wherein the first and second change are approximately equal. CAMERON discloses an electronic vapor device having a first vaporizer for vaporizing a first material and a second vaporizer for vaporizing a second material. When dispensing the first substance is reduced or increased, one or more replacement substances may be released at a correspondingly increased or decreased amount to compensate for the change in the first substance (Paragraph [0131]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to change the amount of the first aerosol of NIELSEN and to change the second aerosol by a corresponding amount (e.g., approximately equal amount), as taught by CAMERON so that different mixtures of multiple liquids can be admitted.
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Claim(s) 6 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over NIELSEN (US 2017/0251727) in view of THORENS (US 2017/0318861) in view of CAMERON (US 2016/0331036) as applied to claims 1, 2, 4, 5, 8, 9 and 11-19 above, and further in view of BELLINGER et al. (US 2013/0104916).
With respect to claims 6 and 7, NIELSEN discloses that the first input is a button, but not necessarily that the second input is a button. BELLINGER et al. disclose that the user input may be a flow sensor or a button to activate the power/power output to the vaporizer (Paragraph [0045]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to use a button to activate the second input of modified NIELSEN, as taught by BELLINGER et al., so as to provide the desired control type to activate each generator.
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Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over NIELSEN (US 2017/0251727) in view of THORENS (US 2017/0318861) in view of CAMERON (US 2016/0331036) as applied to claims 1, 2, 4, 5, 8, 9 and 11-19 above, and further in view of ROBINSON et al. (US 2015/0128967).
With respect to claim 10, NIELSEN discloses that the air-flow sensor may detect the level of vacuum drawn through the mouthpiece, and regulate the heat of the heating element based on this reading (Paragraph [0139]). The lower state represents the claimed base state and the increased power based on the increased vacuum detected represents the claimed boost state in the second generator.
NIELSEN does not explicitly disclose the claimed boost state of the first generator. ROBINSON et al. discloses that the button can be pressed again while inhaling to increase the heating level in order to provide additional heating (Paragraph [0074]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to configure the control circuitry of NIELSEN to boost the first generator by pressing the button again, as taught by ROBINSON et al. so that additional power can be provided to the generator, from the base state.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEX B EFTA whose telephone number is (313)446-6548. The examiner can normally be reached 8AM-5PM EST M-F.
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/ALEX B EFTA/Primary Examiner, Art Unit 1745
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