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 Claims
This Office Action is responsive to communication filed on 11/06/2023.
Claims 1-15 are pending and presented for examination.
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: “temperature change sensing portion configured to sense temperature change” in claims 6-7.
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 § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 6-7 are rejected as a formality because the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph language in these claims does not have sufficient structure in the specification. The
rejection matches the below indefiniteness rejection for the same language. Once that rejection is
overcome, this one will be as well.
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.
Claims 6-7, the claim limitation “a temperature change sensing portion configured to sense the temperature change” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The disclosure is devoid of any structure that performs the function in the claim. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(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.
Claims 1, 5, 9-11 and 15 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by ATKINS (US20180116292A1) (hereinafter – “ATKINS”).
Regarding claim 1
ATKINS teaches an aerosol-generating device comprising:
a temperature sensor configured to sense a temperature change of an airflow path formed inside the aerosol-generating device ([0008]: “A heating control approach consistent with implementations of the current subject matter involves monitoring one or more parameters of a heating element configured for heating of a vaporizable material, and making using of the monitored parameters in an anemometric correlation from which it can be determined whether the vaporizer is idle and when it is being used. When a user initiates an inhalation on the mouthpiece of the vaporizer, a greater amount of air passes over the heating element”; [0028]: ““anemometric” refer to systems and methods for measuring air flow and changes in temperature of an anemometer wire element as air flows past it”); and
a controller configured to compare first information that varies depending on the temperature change with preset second information when the temperature change is sensed, and determines whether a user’s puff occurred based on a comparison result ([0035]: “microcontroller can be configured to periodically measure a parameter (the singular form is used for the remainder of the disclosure for simplicity of discussion, but as noted above, more than one parameter can be used) of the heating element while the vaporizer is in an ON state and in the standby mode at the standby temperature 120. The measured parameter can optionally be a power 110 supplied to the heating element under control of the microcontroller to maintain a constant temperature 120 of the heating element. The microcontroller may be pre-programmed with the knowledge that when the heating element is at the standby temperature, a certain, known amount of power is constantly required to maintain the standby temperature. When the power required to maintain the standby temperature of the heating element exceeds a pre-set value, the microcontroller may register this difference as being correlated with a user taking an inhalation on the vaporizer (e.g., the start of a puff 130)”).
Regarding claim 5
ATKINS teaches the elements of claim 1 as outlined above.
ATKINS also teaches wherein the first information includes a voltage value that changes according to the temperature change of the airflow path ([0028]: “The voltage output from these anemometers is thus the result of some sort of circuit within the device trying to maintain the specific variable (current, voltage, or temperature) constant, following Ohm's law (V=IR). As described herein, one or more parameters (e.g.an applied current, an applied voltage, a temperature, a resistance, a power required to maintain the heating element at a given temperature, etc.) of a heating element within a vaporizer may be monitored, and a change in such parameters matching a certain predetermined pattern can be interpreted as being indicative of a puff having started and/or stopped”).
Regarding claim 9
ATKINS teaches the elements of claim 1 as outlined.
ATKINS also teaches wherein two ore more temperature sensors are provided in the aerosol-generating device, and the first information is calculated based on temperature changes sensed by the two or more temperature sensors ([0082]: “vaporizer may include one or more heating elements (resistive heaters) that are used for vaporizing a vaporizable material and may also be directly monitored, e.g., using a controller and/or other monitoring circuitry, to monitor the temperature and applied power necessary to heat the heating element and to compare the applied power and temperature to a predetermined value(threshold). In this way, as will be described in greater detail herein, the apparatus may detect airflow over the heating element when a user inhales through the mouthpiece of the vaporizer to cause flow of air over the heating element”).
Regarding claim 10
ATKINS teaches the elements of claim 1 as outlined above.
ATKINS also teaches wherein the temperature sensor is further configured to selectively sense a temperature change exceeding a preset value ([0082]: “using a controller and/or other monitoring circuitry, to monitor the temperature and applied power necessary to heat the heating element and to compare the applied power and temperature to a predetermined value (threshold)”).
Regarding claim 11
Claim 11 is a method claim reciting substantially the same limitations as the system claim of claim 1 and is rejected as per claim 1.
Regarding claim 15
ATKINS teaches the elements of claim 11 as outlined above.
The remaining limitations of claim 15 are substantially the same as claim 10 and are rejected as per claim 10.
Claim Rejections - 35 USC § 103
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.
Claims 6-7 are rejected under 35 U.S.C. 103 as being unpatentable by ATKINS.
Regarding claim 6 and 7
ATKINS teaches the elements of claim 1 as outlined above.
ATKINS also teaches wherein the temperature sensor includes a temperature change sensing portion configured to sense the temperature change, and a variable resistor having a resistance that changes [0084]: “the temperature of the heating element (resistive heater) may be determined by the resistance of the heating element (without the need for a separate additional temperature sensor). In any of the variations described herein, resistance of the heating element (e.g., resistive heater) may be used in place of temperature, or the resistance value may be converted to a temperature, in variations in which the resistance of the resistive heater is characteristic of the temperature of the resistive heater. For example, the target resistance may be estimated based on the electrical properties of the resistive heater, e.g., the temperature coefficient of resistance or TCR, of the resistive heater (e.g., “resistive heating element” or “vaporizing element”). As is known in the art, the resistance of the heater may be used to calculate the temperature of the heater (particularly in comparison to a reference resistance value).”)
ATKINS teaches a temperature coefficient of resistance for a temperature sensor comprising a resistor with a resistance that varies according to temperature change. Before the effective filing date of the claimed invention, one of ordinary skill in the art would recognize that a temperature coefficient of resistance can be positive, such that the resistance changes in proportion to the temperature, or that a temperature coefficient of resistance can be negative, such that the resistance changes in inverse proportion to the temperature.
Claims 2-3, 8 and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over ATKINS in view of DJORUP (US4794794A) (hereinafter – “ATKINS-DJORUP”).
Regarding claim 2
ATKINS teaches the elements of claim 1 as outlined above.
ATKINS is not relied on for wherein the first information and the second information change in proportion to a driving voltage of a first module included in the aerosol-generating device.
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However, DJORUP in analogous art teaches a temperature anemometer circuit wherein the first information and the second information change in proportion to a driving voltage of a first module included in the aerosol-generating device (Col. 1, ll. 19-37: widespread use of anemometers to measure airflow “anemometer circuit is illustrated in FIG. 1 wherein a single sensing element is shown at 10 and forms one arm of a four arm Wheatstone bridge which is completed by resistances 11, 12 and 13. Differential amplifier 14 is connected to the bridge at points 15 and 16 in order to determine bridge balance or bridge error signal and amplifier 14 output 17 is fed back to the bridge in order to provide bridge excitation”, Fig. 1 shows a temperature anemometer circuit with an op-amp comprising fixed resistors 12 (R12) and 13 (R13) to bias the positive input of the op-amp and a fixed resistor 11 (R11) and a sensing element (Rx) (note that the sensing element 10 is a variable resistance resistor wherein the resistance varies according to the temperature change induced, “sensing element has a temperature coefficient of resistance” to bias the negative input of the op-amp. “Differential amplifier 14 is connected to the bridge at points 15 and 16 in order to determine bridge balance or bridge error signal and amplifier 14 output 17 is fed back to the bridge in order to provide bridge excitation”. One of ordinary skill in the art would recognize that, as a result of the voltage divider equation, that the voltage at node 15 is given by V15=Vin(R10/(R10+R11) and the voltage at node 16 is given by V16=Vin(R12/(R12+R13)). One of ordinary skill in the art would also recognize that, that the input voltage to resistors R11 and R13 at a time t is given by Vin(t) and is equal to Vout(t-1). As such, when the output voltage of the module changes, it is feedback to the input of the module thus changing the first and second information in proportion to the feedback (i.e., driving) voltage).
ATKINS and DJORUP are analogous art to the claimed invention because they are from the same field of flow sensing devices. Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to apply the teachings of DJORUP to the teachings of ATKINS such that DJORUP’s implementation details could be used with ATKINS’s anemometric correlation method for the purposes of creating hysteresis to smooth output switching.
Regarding claim 3
ATKINS-DJORUP teaches the elements of claim 2 as outlined above.
DJORUP also teaches wherein the first module includes a comparator (Fig. 1 item 14 shows an amplifier 14 configured as comparator).
Regarding claim 8
ATKINS teaches the elements of claim 1 as outlined above.
ATKINS is not relied on for wherein the second information is determined based on constant resistance values of two resistors.
However, DJORUP in analogous art teaches a comparator circuit configured to determine an airflow comprising second information wherein the second information is determined based on constant resistance values of two resistors (Col. 1, ll. 19-37 and Fig. 1 shows a biased comparator circuit implying fixed resistors configured before and after node 16 which is the second information (i.e., reference) input to the op-amp configured as a comparator).
Regarding claim 12
ATKINS teaches the elements of claim 11 as outlined above.
The remaining limitations of claim 12 are substantially the same as claim 2 and are rejected as per claim 2.
Regarding claim 13
ATKINS-DJORUP teaches the elements of claim 12 as outlined above.
The remaining limitations of claim 13 are substantially the same as claim 3 and are rejected as per claim 3.
Claims 4 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over ATKINS-DJORUP in view of ET_NPL (“Op-amp Comparator”, Electronics Tutorials, 11/29/2020, retrieved from https://web.archive.org/web/20201129054730/https://www.electronics-tutorials.ws/opamp/op-amp-comparator.html, retrieved on 3/10/2026).
Regarding claim 4
ATKINS-DJORUP teaches the elements of claim 3 as outlined above.
DJORUP does not explicitly teach wherein the first information includes an input voltage of a positive (+) terminal of the comparator, and the second information includes an input voltage of a negative (-) terminal of a comparator. However, DJORUP Fig. 1 teaches the first information includes an input voltage of a negative terminal of the comparator, and the second information includes an input voltage of a negative terminal.
However, ET_NPL teaches the choice of using the inverting or non-inverting input terminal of an op-amp as the input for a reference signal is a known substitute (Positive and Negative Voltage Comparators (heading): “A basic op-amp comparator circuit can be used to detect either a positive or a negative going input voltage depending upon which input of the operational amplifier we connect the fixed reference voltage source and the input voltage too. In the examples above we have used the inverting input to set the reference voltage with the input voltage connected to the non-inverting input. But equally we could connect the inputs of the comparator the other way around inverting the output signal to that shown above. Then an op-amp comparator can be configured to operate in what is called an inverting or a non-inverting configuration.”).
ATKINS teaches wherein the controller is further configured to determine that the user’s puff occurred, based on a signal that is output from an output terminal of the comparator when the input voltage of the positive (+) terminal is greater than the input voltage of the negative terminal (-) ([0028]: “terms “anemometer” or “anemometric” refer to systems and methods for measuring air flow and changes in temperature of an anemometer wire element as air flows past it. Typically, hot wire anemometers use a very fine wire (on the order of several micrometers) electrically heated to some temperature above ambient air temperature. Air flowing past the wire cools the wire. As the electrical resistance of most metals is dependent upon the temperature of the metal (tungsten is a popular choice for hot-wires), a relationship can be obtained between the resistance of the wire and the air flow speed. Several ways of implementing this exist, and hot-wire devices can be further classified as CCA (constant current anemometer), CVA (constant voltage anemometer), and/or CTA (constant-temperature anemometer). The voltage output from these anemometers is thus the result of some sort of circuit within the device trying to maintain the specific variable (current, voltage, or temperature) constant, following Ohm's law (V=IR). As described herein, one or more parameters (e.g.an applied current, an applied voltage, a temperature, a resistance, a power required to maintain the heating element at a given temperature, etc.) of a heating element within a vaporizer may be monitored, and a change in such parameters matching a certain predetermined pattern can be interpreted as being indicative of a puff having started and/or stopped such that a temperature at which the heating element is maintained can be varied between at least two different setpoints […] The term “one or more parameters of a heating element” as used herein is intended to refer to either or both of an actual heating element itself, which can be a component of a heating circuit to which power is applied such that electrical resistance of the heating element causes the applied electrical power to be converted to heat, and other components that are part of the heating circuit. Those other components may, in some implementations of the current subject matter, include the power source or power supply, one or more integrated circuits, resistors, capacitors, conductive elements for connecting other components of the heating circuit, a microcontroller or other processor, etc.”).
ET_NPL is analogous art to the claimed invention because they from the same field of using an op-amp as a comparator. Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to apply the teachings of ET_NPL to the teachings of ATKINS-DJORUP such that ET_NPL’s reference signal being applied to the inverting or non-inverting input of the op-amp could be used with ATKINS-DJORUP’s comparator according to known methods to yield predictable results.
Regarding claim 14
ATKINS-DJORUP teaches the elements of claim 13 as outlined above.
The remaining limitations of claim 14 are substantially the same as claim 4 and are rejected as per claim 4.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Lee (US20200214355A1) teaches detecting a user’s puff using temperature data.
Felter (US20040089314A1) teaches detecting a puff using a dual thermal anemometer.
Buchberger (US20110226236A1) teaches thermistor flow sensor and a comparator used to determine a user’s puff.
Sosna, C., et al., (“A temperature Compensation Circuit for Thermal Flow Sensors Operated in Constant-Temperature-Difference Mode”, published June 2010, retrieved from https://ieeexplore.ieee.org/abstract/document/5443848/, retrieved on 3/9/2026) teaches comparator circuits for flow sensing using temperature sensors.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael V Farina whose telephone number is (571)272-4982. The examiner can normally be reached Mon-Thu 8:00-6:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kamini Shah can be reached at (571) 272-2279. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/M.V.F./Examiner, Art Unit 2115
/KAMINI S SHAH/Supervisory Patent Examiner, Art Unit 2115