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 .
Status of the Claims
Claims 1-10 are pending and are subject to this Office Action. This is the first Office Action on the merits of the claims.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Rejection 1
Claims 1-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 7-20, and 13 of U.S. Application No. 18/288,892. Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims are directed to an aerosol-generating device comprising an elongated insertion space, a body coupled to the cartridge, a capacitance sensor disposed adjacent to the elongated insertion space, a controller configured to determine whether an object is inserted into the elongated insertion space using the capacitance sensor.
The rejected claims differ from the conflicting claims in that the rejected claim 1 recites a single sensor in the form of a capacitance sensor and U.S. Application No. 18/288,892 discloses a plurality of sensor. However, 18/288,892 teaches one of these sensors is a capacitance sensor and therefore, all elements of the rejected claims are present and obvious over the conflicting claims.
Claim 1 is obvious over claim 1.
Claim 2 is obvious over claim 2.
Claim 3 is obvious over claim 3.
Claim 4 is obvious over claim 3.
Claim 5 is obvious over claim 4.
Claim 6 is obvious over claim 7.
Claim 7 is obvious over claims 7-8.
Claim 8 is obvious over claims 8-9.
Claim 9 is obvious over claim 10.
Claim 10 is obvious over claim 13.
Rejection 2
Claims 1, 6-7, and 9 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 7, and 10-12 of U.S. Application No. 18/697,953. Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims are directed to an aerosol-generating device comprising an elongated insertion space, a capacitance sensor disposed adjacent to the elongated insertion space, a controller configured to determine whether an object is inserted into the elongated insertion space using the capacitance sensor.
The rejected claims differ from the conflicting claims in that the rejected claim 1 recites a body coupled to the cartridge and the controller determines whether the stick inserted into the insertion space is a used stick based on the signal received from the capacitance sensor. However, the dependents claims of 18/697,953 also teach these features. Therefore, all elements of the rejected claims are present and obvious over the conflicting claims.
Claim 1 is obvious over claims 1-3 and 10-11.
Claim 6 is obvious over claim 7.
Claim 7 is obvious over claim 7.
Claim 9 is obvious over claim 12.
Allowable Subject Matter
Claims 1-10 are rejected under non-statutory doble patenting, but would be allowable if the double-patenting rejection is overcome. The following is an examiner’s statement of reasons for indicating allowable subject matter:
No prior art alone or in combination with references discloses a limitation as recited in claim 1. Specifically, no prior art appears to disclose a capacitance sensor disposed in the body to be adjacent to the insertion space when the cartridge is coupled to the body; and a controller configured to determine whether a stick is inserted into the insertion space based on a signal received from the capacitance sensor and determined whether the stick inserted into the insertion space is a used stick based on the signal received from the capacitance sensor.
Fernando et al. (US-20200178608-A1, as cited in the IDS dated 10/26/2023) directed to an aerosol-generating article and electrically operated system incorporating a taggant, discloses the system comprising a power supply for suppling power to a heating element and a detector capable of detecting the presence of the aerosol-generating article (i.e., stick) ([0041]).
Fernando further discloses the stick 100 is insertable into a cavity (i.e., elongated insertion space) of the device/cartridge (Figure 2 and [0116]).
Fernando further discloses the cartridge 304 is coupled to the body of the device 302 (Figure 3 and [0101]).
Fernando further discloses a controller and a detector capable of distinguishing the stick from other sticks configured for use based on the spectroscopic signature of the taggant incorporated within the material of the stick ([0041]-[0042]).
Fernando further discloses the detector may be provided adjacent an external surface of the aerosol-generating device ([0042]).
Fernando further discloses the taggant may be identified more accurately with a light source and light sensor set to absorb a specific wavelength to determine the taggant of the stick ([0023]).
Fernando differs from the instant invention in that Fernando does not explicitly disclose a capacitance sensor disposed in the body to be adjacent to the insertion space when the cartridge is coupled to the body; and a controller configured to determine whether a stick is inserted into the insertion space based on a signal received from the capacitance sensor and determined whether the stick inserted into the insertion space is a used stick based on the signal received from the capacitance sensor.
Mikayama et al. (US-20220192262-A1), directed to an aerosol-generating device with article locking for heating, discloses the device comprises a controller configured to prevent activation of an atomizer ([0042]).
Mikayama further discloses the device can comprise an article sensor to detect whether an aerosol-generating article (i.e., stick) is received in the receiving region (i.e., elongated insertion space) ([0044]).
Mikayama further discloses the article sensor may be in the form of a hall effect sensor or a proximity sensor, and that the sensor detects the sticks location based on pre-determined thresholds ([0045]).
Mikayama further discloses a capacitor can be used as a charge storage device ([0027]).
Mikayama differs from the instant invention in that Mikayama does not explicitly disclose a capacitance sensor disposed in the body to be adjacent to the insertion space when the cartridge is coupled to the body; and a controller configured to determine whether a stick is inserted into the insertion space based on a signal received from the capacitance sensor and determined whether the stick inserted into the insertion space is a used stick based on the signal received from the capacitance sensor.
Bouchuiguir et al. (US-20240237715-A1), directed to an aerosol-generating device, discloses the device comprising a heating compartment, a heater, a consumable article (i.e., stick) insertable into the heating compartment, and detection means for detecting whether the consumable article has been inserted into the heating compartment (abstract).
Bouchuiguir further discloses the detection means includes a hall sensor for detecting a decreased strength of a magnetic field used to detect the presence of the stick ([0040]).
Bouchuiguir differs from the instant invention in that Bouchuiguir does not explicitly disclose a capacitance sensor disposed in the body to be adjacent to the insertion space when the cartridge is coupled to the body; and a controller configured to determine whether a stick is inserted into the insertion space based on a signal received from the capacitance sensor and determined whether the stick inserted into the insertion space is a used stick based on the signal received from the capacitance sensor.
Reevell et al. (US-20230209662-A1), directed to a cartridge for an aerosol-generating system, discloses the system comprising a sensor including a capacitor with a first capacitor plate and a second capacitor plate, a storage portion for storing an aerosol-forming substrate, and a vaporizer (abstract)
Reevell further discloses the storage portion is between the first capacitor plate and the second capacitor plate and the permittivity of the liquid storage portion changes upon a change of the volume of the liquid aerosol-forming substrate held in the liquid storage portion (abstract and [0007]).
Reevell further discloses the sensor is configured to measure the capacitance of the capacitor such that the amount of the volume of the aerosol-forming substrate held in the storage portion is determinable from the measured capacitance (abstract and [0007]).
While Reevell discloses a capacity sensor for an aerosol-generating device, Reevell differs from the instant invention in that Reevell does not explicitly disclose a capacity sensor located in the same location and with the same function claimed. It would not be obvious to one of ordinary skill in the art to combine the liquid sensing capacity sensor of Reevell to the cartridge of Fernando because the capacitors perform different functions.
As such, no prior art appears to disclose or reasonably suggest a capacitance sensor disposed in the body to be adjacent to the insertion space when the cartridge is coupled to the body; and a controller configured to determine whether a stick is inserted into the insertion space based on a signal received from the capacitance sensor and determined whether the stick inserted into the insertion space is a used stick based on the signal received from the capacitance sensor as recited in claim 1 and therefore claim 1 is indicated as having allowable subject matter.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MADELEINE PAULINA DELACRUZ whose telephone number is (703)756-4544. The examiner can normally be reached Monday - Friday 8-5.
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/MADELEINE P DELACRUZ/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755