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 .
Election/Restrictions
Claims 9-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 02/20/2026.
The Restriction Requirement pertaining to Species B is withdrawn; Species A was not found in the review of the prior art. The review of the prior art did find Species B.
Status of the Claims
Claims 1-15 are pending. Claims 9-15 remain withdrawn. Claims 1-8 are ready for examination.
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 6-7 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.
Regarding claim 6, “the processor is configured to: … the determined temperature profile comprises…” with this language repeating based on moisture content compared to a reference amount of moisture. As written the scope of the claim is unclear and is thus considered indefinite. For the purposes of examination, the claim will be examined as though it recited that the controller is configured to determine a first temperature profile in response to determining the amount of moisture contained in the cigarette is greater than or equal to a reference amount of moisture, where the first temperature profile comprises: a first section in which the cigarette is heated to a first temperature during a predetermined time period; a second section in which the cigarette is heated to a second temperature higher than the first temperature; and a third section in which the cigarette is heated to a third temperature higher than the first temperature and lower than the second temperature; and the controller is further configured to determine a second temperature profile in response to determining the amount of moisture in the cigarette is less than a reference amount of moisture, where the second temperature profile comprises: a fourth section in which the cigarette is heated to a fourth temperature; and a fifth section in which the cigarette is heated to a fifth temperature lower than the fourth temperature. Appropriate correction is required.
Claim 7 is considered indefinite by virtue of its dependency on claim 6.
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)(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.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Frake (US 2022/012511 A1).
Regarding claim 1, Frake discloses:
An aerosol-generating device, ([0001]), comprising: a housing having an inner space formed therein, ([0004]-[0005]; Fig 1, 3-4, 6) to allow a cigarette, ([0004]-[0005]; Fig 2-3, 6) to be inserted thereinto; a moisture detection sensor configured to sense moisture contained in the cigarette inserted into the inner space, ([0004]-[0007]); a memory configured to store a plurality of power profiles, ([0017]); a heater configured to heat the cigarette, ([0009]); and a controller configured to: determine an amount of moisture contained in the cigarette based on a signal received from the moisture detection sensor, and determine a power profile corresponding to the determined amount of moisture among the plurality of power profiles, ([0019]-[0021] describing at least two power profiles applied to the heater by the controller, one based on determining the moisture content is within a normal operating level or below the normal operating level, and a second based on determining the moisture content is above a normal operating level). Inherently a power profile applied to a particular cigarette is considered equivalent to a temperature profile, because applying a power profile to the heater to heat a cigarette with a specific moisture content will yield a range of temperatures in the cigarette such that a determined power profile inherently comprises a determined temperature profile.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 2, and 5-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frake (US 2022/012511 A1).
Regarding claim 2, Frake discloses the aerosol generating device according to claim 1. Frake further discloses an embodiment that specifies the location of the capacitor electrodes, where the inner space of the housing is configured to hold cigarette extractor, and where the cigarette extractor in use forms an inner wall surrounding the cigarette and which forms an accommodation space recessed from the inner wall formed by the cigarette extractor, where one capacitor electrode, considered to be a part of the moisture detection sensor, is disposed on the inner wall of the cigarette extractor in the accommodation space, in an orientation facing the cigarette, and the other capacitor electrode is disposed within the cigarette, also considered a part of the moisture detection sensor, ([0154[0158]] Fig 5-6 refs 268, 228). Frake discloses another embodiment where the each of the capacitor electrodes are disposed directly on the cigarette wrapper (not considered part of the device), where both capacitor electrodes are in contact with and disposed in an orientation facing the cigarette, ([0168] Fig 11-12 refs 452 & 454).
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Frake by duplication and rearrangement of parts, MPEP 2144.04 VI B & C, to have arrived at the claimed invention. Frake discloses an embodiment where the capacitor electrodes are disposed directly on the outer wrapper on opposite sides and successfully obtain readings to determine moisture content of the cigarette, (Fig 11-12). Frake also discloses an embodiment where one of the capacitor electrodes is disposed on the outer surface of an inner wall of an extractor, (Fig 5-6}. Duplicating the sensor on the outer surface of the inner wall of the extractor, to read the moisture content of a cigarette contained in the extractor, such that the moisture content reading is based on the capacitance values through the entire cigarette, similar to the configuration of Fig 11-12, is considered an obvious variation of the disclosure of Frake. One of ordinary skill in the art would believe such modification would be successful because the disclosure of Frake demonstrates that a capacitor electrode on the outer surface of the extractor will work, and capacitance measurements through the entire width of the cigarette also works. One of ordinary skill in the art would be motivated to make this modification to obtain measurements through the entire width of the cigarette, a configuration already disclosed by Frake.
Regarding claim 5, Frake discloses the aerosol generating device according to claim 1. Frake further discloses the moisture detection sensor comprises a plurality of electrodes disposed determine the capacitance of a cigarette inserted into the inner space, and wherein the signal received from the moisture detection sensor is based on a capacitance between the plurality of electrodes, ([0005]). Frake discloses an embodiment where the cigarette is inserted into the inner space, and a part of the moisture detection sensor comprising one of the electrodes is in contact with the cigarette but another part of the motion detection sensor comprising the second electrode does not appear to be in contact with the cigarette, but is merely close to the cigarette, ([0143] Fig 1 ref 128 (one electrode formed as part of the heater that is inserted into the cigarette, ref 130 (the other electrode disposed on the sidewall of the heater that forms the inner space), Fig 3 depicting ref 130 as not in contact with the cigarette. Frake discloses another embodiment where the electrodes are attached to the cigarette, ([0171] Fig 11), and where the capacitance of the smoking article is measure based on a plurality of electrodes that contact the cigarette, ([0172] Fig 12).
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Frake such that the electrode depicted in Fig 3 ref 130 contacts the cigarette when it is inserted into the inner space of the housing, so that the capacitance measured is based on the moisture content of the cigarette and excludes variance in the reading that be caused by a gap between the electrode and the cigarette. Frake discloses moisture detection based on electrodes in contact with the cigarette because Frake discloses an embodiment where the electrodes are mounted directly on the cigarette. Arranging the sensor Fig 1 and 3 ref 130 such that it would similarly contact the exterior of the cigarette when it is inserted in the inner space of the holder would be within the ordinary skill in the art. One of ordinary skill in the art would be motivated to make such modification to obtain a capacitance reading of moisture in the cigarette that was based on the material of the cigarette between the two electrodes, rather than between the two electrodes and the gap.
Regarding claim 6, Frake discloses the aerosol generating device according to claim 1. Frake discloses that capacitance sensors can be used to indicate the amount of water present in the aerosol forming substrate between the electrodes, ([0007]), and that controlling the power supplied to the heater based on the capacitive sensing can be used to improve the consistency of the properties of the aerosol generated from an aerosol forming substrate, to improve the experience of a user, {0009]). As in the rejection of claim 1 above, controlling the heater temperature is considered met based on controlling the power supplied to the heater.
Frake discloses that an increase in the water content of an aerosol forming substrate can increase the water vapor content in the aerosol generated from the substrate, affecting the apparent temperature of the aerosol, which is the temperature perceived by the user inhaling the aerosol, ([0010]).
Frake discloses the water content measured by capacitance may be used as a basis to control the heater, ([0012]), and the controller may be configured to supply power to the heater in accordance with predetermined power profiles, ([0017]), controlling the heater based on a measured capacitance in any suitable manner, ([0018]). Frake discloses at least two power profiles, one where the capacitance measurements indicate the water content is above a normal operating level, ([0020]), and another when the water content is at or below a normal moisture content, ([0019}. Frake discloses that when the moisture content is above a normal condition, the controller may supply power according to a low power profile, to drive off excess water from the aerosol forming substrate over period of time, resulting in the aerosol forming substrate being within the normal operating level after the initial period of time, ([0021]). Frake discloses that the power supplied to the heater is a result effective variable, that can be varied as a function of the determined moisture content, ([0023]), to improve the consistency of the aerosol generated and the perceived temperature of the aerosol delivered to the user, ([0009]).
It would be obvious to one of ordinary skill in the art to heat the cigarette according to different temperature profiles based on the moisture detected in the cigarette. Frake discloses that upon detecting a high moisture condition, the cigarette may be heated according to a first power profile that includes a low power period to remove some of the water content, considered to be equivalent to heating the cigarette a first temperature lower than the others, and then supply power at a higher range when the measured capacitance is within an acceptable predetermined range, ([0024], [0028]-[0029]). This is considered to meet applying two determined temperature profiles, one with the low temperature segment when the capacitance exceeds a threshold (to dry the cigarette), followed by heating the cigarette to a second temperature after the capacitance meets the predetermined acceptable range, and a second power profile when the capacitance is below the threshold, and the cigarette is heated to an aerosol generation temperature normally. Although Frake does not disclose heating the cigarette to a lower temperature third and fifth temperature, after heating the cigarette to the higher second and fourth temperatures, respectively this cooling of the cigarette after being heated to the aerosol generating temperature is considered inherent as a result of the normal operation of the aerosol generating device where the lower temperatures are caused by a user puffing on the cigarette, which inherently cools the cigarette after it reaches the aerosol generating temperature.
Regarding claim 7, Frake discloses the aerosol generating device according to claim 6. Frake discloses a low power heating profile used to drive off water to dry the aerosol generating article to achieve moisture content within a normal range, ([0021]), before applying a higher power profile to heat the aerosol generating article, ([0024]). Frake discloses that the aerosol generating article may have aerosol formers such as propylene glycol known to have a volatilization temperature of approximately 298 C. Thus, Frake is considered to meet the limitations requiring the first temperature to be higher than a temperature of external air, and lower than a volatilization temperature of an aerosol generating substance in the aerosol generating article.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frake (US 2022/012511 A1) as applied to claim 1, and in further view of Lim (US 2020/0221782 A1).
Regarding claim 8, Frake discloses the aerosol generating device according to claim 1. Frake discloses that the controller may be configured to measure the capacitance before supplying power from the power supply to the heater, so enable the power supplied to the heater to be controlled from the start of a heating cycle, ([0036]). Frake does not disclose a cigarette detection sensor configured to sense the insertion of the cigarette into the insertion space,
Lim teaches a similar aerosol generating device, ({0006]), and is thus within the inventor’s field of endeavor. Lim teaches a first sensor in the form of a cap, where when the cap is closed the device is put in an off position, and when the cap is open the device is in the open position, ([0022]). Lim teaches a second sensor configured to sense whether a cigarette is inserted into the device, ([0021]), and may control power to the heater in response to determining that the cigarette is inserted in the device, such that the heater is pre-heated to a predetermined temperature, ([0024]).
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Frake according to the teachings of Lim. Improving the device of Frake with the additional sensors of Lim would be expected to save battery power, by keeping the device in the off state when no cigarette could be inserted into the device. Because Frake discloses measuring the moisture in the cigarette prior to supplying power to the heater, and Lim teaches supplying power to the heater after the second sensor detects the presence of an inserted cigarette, the modification to Frake by the sensors and additional controller configuration of Lim are considered to render obvious a sensor detecting the insertion of a cigarette and preheating the cigarette, as taught by Lim, where Frake suggests detecting the moisture content of the cigarette before the initial heating cycle.
Allowable Subject Matter
Claims 3-4 are allowable over the prior art.
Claims 3-4 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: Regarding claim 3, Frake (US 2022/012511 A1) is the closest prior art of record. Frake discloses the aerosol generating device according to claim 1, but the determination of the amount of moisture in the cigarette is based on capacitance, while claim 3 requires a light emitter comprising at least one light source and a light receiver comprising at least one photodiode configured to respond to light incident thereon, where the determined amount of moisture is based upon an amount of light incident on the light receiver. No measurement technique for determining an amount of moisture based upon a light emitter and light receiver comprising a photodiode was found within the inventor’s field of endeavor, nor was there any teaching, suggestion, or motivation to replace the method of using capacitance to determine moisture content in the aerosol generating article with a moisture determination method based on emitted and received light. Absent impermissible hindsight, one of ordinary skill in the art would not be motivated to make such substitution.
Claim 4 further limits claim 3 and is considered to comprise allowable subject matter by virtue of its dependence.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Harrison et al. (US such A1). Harrison teaches an aerosol delivery device that delivers aerosol on demand to a user without significant delay despite fluctuations including moisture content, ([0005]). Harrison discloses the use of a optical meter or photodiode opposite a light source, using the combination to determine an obscurement of the light reaching the photodiode to determine a concentration of vapor in the chamber, ([0056]). Although Harrison teaches using a photodiode to determine the concentration of the vapor in the chamber, and tailor precise dosing of the vapor to the user, there is no disclosure that suggests configuring the photodiode and light emitter as a moisture sensor to determine the moisture content.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL E VAKILI whose telephone number is (571)272-5171. The examiner can normally be reached Monday - Friday 7:30 am - 4:30 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H. Wilson can be reached at (571) 270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/D.E.V./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
Prosecution Insights