DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim(s) 1-15 is/are pending.
Claim(s) 1 is/are independent.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy, for the foreign priority, of European Patent Application No. EP 21167357.9 (filed on 4/8/2021), was received on 10/5/2023.
The present application is the National Stage entry under 35 U.S.C. 371 of PCT/IB2022/053118 (filed on 4/4/2022).
Information Disclosure Statement
The references cited in the information disclosure statement(s) (IDS) submitted on 10/5/2023 and 4/13/2026 have been considered by the examiner.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words. The form and legal phraseology often used in patent claims, such as "means" and "said," should be avoided. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, "The disclosure concerns," "The disclosure defined by this invention," "The disclosure describes," etc.
This application does not contain an abstract of the disclosure as required by 37 CFR 1.72(b). An abstract on a separate sheet is required.
The use of the term “Bluetooth”, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“an aerosol generating apparatus configured to cause…to generate” in Claim 13,
“an air pattern detection subsystem configured to detect…” in Claim 14,
“an exhale direction determination subsystem configured to determine…” in Claim 14, and
“an output indicator subsystem configured to provide…” in Claim 14.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim(s) 1-15 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (specifically, an abstract idea) without significantly more.
As per the 2019 Patent Eligibility Guidance, claim(s) 1-15 are eligible as per the Step 1 (statutory) analysis.
However, as per the Step 2A Prong One (abstract idea, law of nature or natural phenomenon) analysis, the claimed invention in claim(s) 1 is directed to a judicial exception (specifically, an abstract idea); this is because the claims recite determining an air pattern in proximity to an aerosol generating device, and indicating the exhale direction based on the air pattern, which constitutes receiving data and manipulating the data by making determinations and projections, all of which fall under a sub-category of abstract ideas, namely mental processes.
As per the Step 2A Prong Two (practical application) analysis, this judicial exception is not integrated into a practical application because claim(s) 1 simply recite data gathering and manipulation which are not incorporated into any such practical application which applies the gathered and manipulated data.
As per the Step 2B (significantly more) analysis, claim(s) 1 does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims only recite functional units where the functions (of gather and manipulating data) are related to one another, without the recitation of any non-generic hardware that incorporates such data gathering and manipulation.
Dependent claim(s) 2 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites determining a direction of airflow in proximity to the aerosol generating device, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 3 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites determining a speed of airflow in proximity to the aerosol generating device, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 4 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites determining a turbulence of airflow in proximity to the aerosol generating device, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 5 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites collecting data from an airflow sensor, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 6 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites comprising the airflow sensor, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 7 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites the airflow sensor being remote from the aerosol generating device, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 8 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites processing data from a ventilation system, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 9 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites processing data from a heating, ventilation, and air conditioning system, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 10 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites mapping an aspect of the air pattern on a three-dimensional representation of a space in proximity to the aerosol generating article, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 11 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites mapping the three-dimensional space in proximity to the aerosol generating article to generate the three-dimensional representation of the space, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 12 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites identifying a location of the aerosol generating device in the map of the three-dimensional space, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 13 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites a receptacle configured to receive an aerosol generating article; an aerosol generating apparatus configured to cause the aerosol generating article to generate an aerosol for inhalation by a user; control electronics operatively coupled to the aerosol generating apparatus; an airflow sensor configured to detect one or more parameters of airflow external to the aerosol generating device, wherein the control electronics are operatively coupled to airflow sensor; and an output indicator, wherein the control electronics are configured to cause the output indicator to indicate a direction in which a user should exhale after drawing on an aerosol generating device based on the one or more detected airflow parameters, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 14 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites an air pattern detection subsystem configured to detect parameters regarding an air pattern in proximity to an aerosol generating device; an exhale direction determination subsystem configured to determine a direction a user should exhale after drawing on the aerosol generating device based on the detected parameters regarding the air pattern; and an output indicator subsystem configured to provide an indication to the user of the determined direction the user should exhale, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Dependent claim(s) 15 does not recite subject matter that cures the 101 deficiency of claim(s) 1, because it recites comprising the aerosol generating device, which further recites an abstract idea without being integrated into a practical application, and without including additional elements sufficient to amount to significantly more than the judicial exception.
Claim Rejections - 35 USC § 102
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) 1-15 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Finke et al. (U.S. Pub. No. 2020/0193806) (hereinafter “Finke”).
Regarding claim 1, Finke teaches a method for indicating an exhale direction for a user to exhale after drawing on an aerosol generating device, (Para. 33, 43 - - indication is made to user regarding breathing pattern, including direction of exhale, while using an aerosol)
the method comprising: determining an air pattern in proximity to an aerosol generating device; (Para. 105, 118 - - sensors in proximity to aerosol detect and help determine air flow/pattern)
and indicating the exhale direction based on the air pattern. (Para. 33, 43 - - indication is made to user regarding breathing pattern, including direction of exhale, based on determined air flow/pattern)
Regarding claim 2, Finke further teaches determining a direction of airflow in proximity to the aerosol generating device. (Para. 105, 118 - - sensors in proximity to aerosol detect and help determine air flow/direction)
Regarding claim 3, Finke further teaches determining a speed of airflow in proximity to the aerosol generating device. (Para. 105, 118 - - sensors in proximity to aerosol detect and help determine air flow/speed)
Regarding claim 4, Finke further teaches determining a turbulence of airflow in proximity to the aerosol generating device. (Para. 105, 118 - - sensors in proximity to aerosol detect and help determine air flow/turbulence)
Regarding claim 5, Finke further teaches collecting data from an airflow sensor. (Para. 105, 118 - - sensors in proximity to aerosol detect and help determine air flow)
Regarding claim 6, Finke further teaches the airflow sensor. (Para. 105, 118 - - sensors in proximity to aerosol detect and help determine air flow)
Regarding claim 7, Finke further teaches wherein the airflow sensor is remote from the aerosol generating device. (Para. 105, 118 - - sensors are in proximity, i.e. remote and not attached)
Regarding claim 8, Finke further teaches processing data from a ventilation system. (Para. 56 - - ventilation is measured, i.e. data is processed with respect to ventilation)
Regarding claim 9, Finke further teaches processing data from a heating, ventilation, and air conditioning system. (Para. 56 - - ventilation is measured, i.e. data is processed with respect to ventilation)
Regarding claim 10, Finke further teaches mapping an aspect of the air pattern on a three-dimensional representation of a space in proximity to the aerosol generating article. (Para. 84 - - mapping data is used)
Regarding claim 11, Finke further teaches mapping the three-dimensional space in proximity to the aerosol generating article to generate the three-dimensional representation of the space. (Para. 84 - - mapping data is used)
Regarding claim 12, Finke further teaches identifying a location of the aerosol generating device in the map of the three-dimensional space. (Para. 84 - - location data is used)
Regarding claim 13, Finke further teaches wherein the aerosol generating device comprises: a receptacle configured to receive an aerosol generating article; (Para. 18 - - aerosol generator is used)
an aerosol generating apparatus configured to cause the aerosol generating article to generate an aerosol for inhalation by a user; (Para. 18 - - aerosol generator is used)
control electronics operatively coupled to the aerosol generating apparatus; (Para. 18 - - aerosol generator is used)
an airflow sensor configured to detect one or more parameters of airflow external to the aerosol generating device, (Para. 105, 118 - - sensors in proximity to aerosol detect and help determine air flow)
wherein the control electronics are operatively coupled to airflow sensor; (Para. 105, 118 - - sensors in proximity to aerosol detect and help determine air flow)
and an output indicator, wherein the control electronics are configured to cause the output indicator to indicate a direction in which a user should exhale after drawing on an aerosol generating device based on the one or more detected airflow parameters. (Para. 33, 43 - - indication is made to user regarding breathing pattern, including direction of exhale, based on determined air flow/pattern)
Regarding claim 14, Finke further teaches wherein the system comprises: an air pattern detection subsystem configured to detect parameters regarding an air pattern in proximity to an aerosol generating device; (Para. 105, 118 - - sensors in proximity to aerosol detect and help determine air flow)
an exhale direction determination subsystem configured to determine a direction a user should exhale after drawing on the aerosol generating device based on the detected parameters regarding the air pattern; (Para. 33, 43 - - indication is made to user regarding breathing pattern, including direction of exhale, based on determined air flow/pattern)
and an output indicator subsystem configured to provide an indication to the user of the determined direction the user should exhale. (Para. 33, 43 - - indication is made to user regarding breathing pattern, including direction of exhale, based on determined air flow/pattern)
Regarding claim 15, Finke further teaches the aerosol generating device. (Para. 18 - - aerosol generator is used)
It is noted that any citations to specific, pages, columns, lines, or figures in the prior art references and any interpretation of the reference should not be considered to be limiting in any way. A reference is relevant for all it contains and may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art. See MPEP 2123.
Citation of Pertinent Prior Art
The following prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
U.S. Pub. No. 2015/0282527 by Henry, Jr., which discloses sensor for an aerosol delivery device (Title/Abstract).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Saad M. Kabir whose telephone number is 571-270-0608 (direct fax number is 571-270-9933). The examiner can normally be reached on Mondays to Fridays 9am to 5pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mohammad Ali can be reached on 571-272-4105. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SAAD M KABIR/
Examiner, Art Unit 2119
/MOHAMMAD ALI/Supervisory Patent Examiner, Art Unit 2119
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