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 .
This office action is in response to applicant’s election filed August 7, 2026. Claims 1-18 have been elected. Claims 19-20 have been withdrawn.
Election/Restrictions
Claims 19-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected method, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on August 7, 2026.
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 1-3, 13-14, and 16-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 20170181223 A1 (hereinafter SUR). SUR was made of record on applicant's information disclosure statement filed January 22, 2024.
Regarding claim 1, SUR discloses an a control body with a cartridge and a heating element equipped with a proximity sensor (abstract). SUR discloses an aerosol delivery device (Fig. 2, aerosol delivery device 100, ¶36); at least one proximity sensor (Fig. 2, proximity sensor 248, ¶61) configured to detect a person (¶6, ¶62 specific user) without physical contact by them with the sensor (¶61). SUR further discloses that the device is configured to output a detection signal when a person is detected (¶64). SUR further discloses an activity state processor (Fig. 2, control component 208, ¶38) configured to receive the detection signal (¶62), and to determine whether to change an operational state of the aerosol delivery device between a first activity state and a second activity state based at least in part on the received detection signal (¶62). SUR discloses that the proximity sensor and the control unit are configured to control operation of the functional element of the aerosol device in response to presence being detected (¶62). SUR discloses that functional elements may include altering a power state including activation or going to a low-power state (¶63). Other possible states include locked/ unlocked (¶64).
Regarding claim 2, SUR discloses the aerosol delivery system of claim 1 as discussed above. It is noted that applicant has recited a Markush group (see MPEP 2117). The limitation of the claim is met when any one of the alternatives in the group is present in the prior art. Others may be present but not relied upon for purposes of the written rejection. In this case, SUR further discloses the at least one proximity sensor is located on one or more selected from the list consisting of: i. the aerosol delivery device. As shown in Fig. 2, the proximity sensor 248 is located on the aerosol delivery device 100.
Regarding claim 3, SUR discloses the aerosol delivery system of claim 1 as discussed above. It is noted that applicant has recited a Markush group (see MPEP 2117). The limitation of the claim is met when any one of the alternatives in the group is present in the prior art. SUR further discloses compared to the second activity state, the first activity state has one or more selected from the list consisting of: i. a lower power requirement (¶54-¶55, ¶63).
Regarding claim 13, SUR discloses the aerosol delivery system of claim 1 as discussed above. SUR further discloses at least a second sensor (¶13); and the activity state processor uses the detection signal and a signal from the at least second sensor to estimate whether a detected person may be a user (¶67).
Regarding claim 14, SUR discloses the aerosol delivery system of claim 13 as discussed above. SUR further discloses the first sensor is one of a capacitance (¶4); and the second sensor is one of a capacitance (¶67). In this case, SUR discloses the use of a capacitance sensor for both the first and second sensor (¶67). Though the closed language of “consisting of” is not recited in this claim, the recitation of “one of” and “or” results in the claim being anticipated when the prior art teaches any one of the limitations. Therefore, the claimed limitations are met.
Regarding claim 16, SUR discloses the aerosol delivery system of claim 1 as discussed above. It is noted that applicant has recited a Markush group (see MPEP 2117). The limitation of the claim is met when any one of the alternatives in the group is present in the prior art. Others may be present but not relied upon for purposes of the written rejection. In this case, SUR further discloses in which the first activity state may include one or more selected from the list consisting of: iv. a lower duty cycle or lower power pre-heating (¶52, ¶63, ¶65).
Regarding claim 17, SUR discloses the aerosol delivery system of claim 1 as discussed above. It is noted that applicant has recited a Markush group (see MPEP 2117). The limitation of the claim is met when any one of the alternatives in the group is present in the prior art. Others may be present but not relied upon for purposes of the written rejection. In this case, SUR further discloses in which the second activity state may include one or more selected from the list consisting of: a higher duty cycle or higher power heating (¶9-¶10, ¶51, ¶54-¶55).
Regarding claim 18, SUR discloses the aerosol delivery system of claim 1 as discussed above. It is noted that applicant has recited a Markush group (see MPEP 2117). The limitation of the claim is met when any one of the alternatives in the group is present in the prior art. Others may be present but not relied upon for purposes of the written rejection. In this case, SUR further discloses in which the aerosol delivery system is configured to switch back from the second state to the first state at predetermined time after one or more selected from the list consisting of: ii. an aerosol delivery has been completed (¶29, ¶51).
Claim 4 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by SUR as evidenced by Introduction to Circuit Analysis and Design (hereinafter GLISSON).
Regarding claim 4, SUR discloses the aerosol delivery system of claim 1 as discussed above. SUR further discloses the proximity sensor comprises a capacitive sensor (¶4, ¶13). SUR discloses that the proximity sensor includes a first and second capacitive sensor that indicate the presence of a user. SUR further discloses a proximity capacitance with a person acting as a conductor when they are within proximity of an electrical field of the capacitive sensor (¶13, ¶71).
Regarding the limitation comprising a first sensor electrode and an insulating layer creating a parasitic capacitance with the environment above the insulating layer, these are inherent characteristics of circuit design as evidenced by GLISSON. First, GLISSON evidences that a capacitor (which would be part of a capacitive sensor) consists essentially of conducting plates (i.e. electrode) separated by an insulating material. GLISSON page 453. The electrical components (namely the capacitive sensors) inherently comprise electrodes and insulating layers. GLISSON further evidences that when capacitors are in use, parasitic capacitance is created (GLISSON page 255). Therefore, since a capacitive sensor is used in SUR, there inherently are electrodes, insulating layers and parasitic capacitance in the environment. These are basics of circuitry that exist when using capacitors and do not result in patentability.
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.
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.
Claims 5-12 are rejected under 35 U.S.C. 103 as being unpatentable over SUR as applied to claim 1 above, and further in view of US 20220151300 A1 (hereinafter DAVIDSON).
Regarding claim 5, SUR discloses the aerosol delivery system of claim 1 as discussed above. SUR does not disclose the proximity sensor comprises an audio sensor operable to detect audio characteristic of proximity to a person.
DAVIDSON teaches a system and method for authentication (abstract) of an e-cigarette (¶170). DAVIDSON teaches that a device may operate based on reflections of soundwaves produced by the individual (¶229). DAVIDSON teaches that authentication is performed by authorizing based on voice (¶325) obtained from wave sensors such as microphones (¶324). DAVIDSON teaches that a wave generator is configured to have a benefit such that a frequency range is a system configured to identify and reject usage by minors and children (¶218, ¶320). DAVIDSON teaches that authentication is necessary to prevent the delivery of a substance to the individual if the authentication indicates that the individual is a child (¶45, ¶121, ¶173, ¶218).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified SUR to provide the proximity sensor comprises an audio sensor operable to detect audio characteristic of proximity to a person as taught in DAVIDSON. A person of ordinary skill in the art would obviously include an audio sensor to detect audio characteristic of a person. Doing so would prevent use of an aerosol device by a child (DAVIDSON ¶45, ¶121, ¶173, ¶218).
Regarding claim 6, modified SUR discloses the aerosol delivery system of claim 5 as discussed above. SUR does not disclose the audio sensor comprises a plurality of microphones configured to detect one or more selected from the list consisting of: i. direction; and ii. attenuation distance of voiced sounds. It is noted that applicant has recited a Markush group (see MPEP 2117). The limitation of the claim is met when any one of the alternatives in the group is present in the prior art. Others may be present but not relied upon for purposes of the written rejection.
DAVIDSON teaches a system and method for authentication (abstract) of an e-cigarette (¶170). DAVIDSON teaches that a device may operate based on reflections of soundwaves produced by the individual (¶229). DAVIDSON teaches that authentication is performed by authorizing based on voice (¶325) obtained from wave sensors such as microphones (¶324). DAVIDSON teaches that a wave generator is configured to have a benefit such that a frequency range is a system configured to identify and reject usage by minors and children (¶218, ¶320). DAVIDSON teaches that authentication is necessary to prevent the delivery of a substance to the individual if the authentication indicates that the individual is a child (¶45, ¶121, ¶173, ¶218). DAVIDSON further teaches that the triggering event can be based on a distance (¶260, ¶287).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified SUR to provide the audio sensor comprises a plurality of microphones configured to detect attenuation distance of voiced sounds as taught in DAVIDSON. A person of ordinary skill in the art would obviously include an audio sensor to detect audio characteristic (i.e. attenuation) of a person. Doing so would prevent use of an aerosol device by a child (DAVIDSON ¶45, ¶121, ¶173, ¶218).
Regarding claim 7, modified SUR discloses the aerosol delivery system of claim 5 as discussed above. SUR does not disclose the proximity sensor is operable to detect a delayed correlation between detected audio and an emitted audio.
DAVIDSON teaches a system and method for authentication (abstract) of an e-cigarette (¶170). DAVIDSON teaches that a device may operate based on reflections of soundwaves produced by the individual (¶229). DAVIDSON teaches that authentication is performed by authorizing based on voice (¶325) obtained from wave sensors such as microphones (¶324). DAVIDSON teaches that the transmitted wave pattern is adjusted to conform with inhalation dynamics of the inhaling individual (¶231, ¶248). DAVIDSON teaches transmitting waves with a volume that a first individual can hear and a second individual cannot here (¶21-¶22). DAVIDSON teaches the method of authentication may include normalizing a detected wave with respect to a predetermined reference wave signal of the sound of the environment (¶66). DAVIDSON teaches that the wave generator produces noise and the wave sensor detects noise (¶218-¶219). These waves are compared with a memory of an oral signature to authenticate a user (¶224). DAVIDSON teaches that the wave generator generates a wave for a predetermined amount of time and then wave sensor captures reflected waves to capture overlap (¶220-¶221). DAVIDSON teaches that authentication is necessary to prevent the delivery of a substance to the individual if the authentication indicates that the individual is a child (¶45, ¶121, ¶173, ¶218).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified SUR to provide the proximity sensor is operable to detect a delayed correlation between detected audio and an emitted audio as taught in DAVIDSON. A person of ordinary skill in the art would obviously include wave generator to emit audio and a sensor to receive it to then compare oral signatures (DAVIDSON ¶224). Doing so would prevent use of an aerosol device by a child (DAVIDSON ¶45, ¶121, ¶173, ¶218).
Regarding claim 8, modified SUR discloses the aerosol delivery system of claim 7 as discussed above. SUR does not disclose the emitted audio is emitted from one of the aerosol delivery device or a companion device.
DAVIDSON teaches a system and method for authentication (abstract) of an e-cigarette (¶170). DAVIDSON teaches that a device may operate based on reflections of soundwaves produced by the individual (¶229). DAVIDSON teaches that the wave generator produces noise and the wave sensor detects noise (¶218-¶219). These waves are compared with a memory of an oral signature to authenticate a user (¶224). DAVIDSON teaches that the wave generator generates a wave for a predetermined amount of time and then wave sensor captures reflected waves to capture overlap (¶220-¶221). DAVIDSON teaches that authentication is necessary to prevent the delivery of a substance to the individual if the authentication indicates that the individual is a child (¶45, ¶121, ¶173, ¶218).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified SUR to the emitted audio is emitted from one of the aerosol delivery device or a companion device as taught in DAVIDSON. A person of ordinary skill in the art would obviously include wave generator to emit audio and a sensor to receive it to then compare oral signatures (DAVIDSON ¶224). Doing so would prevent use of an aerosol device by a child (DAVIDSON ¶45, ¶121, ¶173, ¶218). Though the closed language of “consisting of” is not recited in this claim, the recitation of “one of” and “or” results in the claim being anticipated when the prior art teaches any one of the limitations. Therefore the claimed limitations are met.
Regarding claim 9, modified SUR discloses the aerosol delivery system of claim 7 as discussed above. SUR does not disclose the proximity sensor uses the delayed correlation to detect one or more selected from the list consisting of: i. whether the aerosol delivery device has been removed from storage; and ii. a distance from the person's face. It is noted that applicant has recited a Markush group (see MPEP 2117). The limitation of the claim is met when any one of the alternatives in the group is present in the prior art. Others may be present but not relied upon for purposes of the written rejection.
DAVIDSON teaches a system and method for authentication (abstract) of an e-cigarette (¶170). DAVIDSON teaches that a device may operate based on reflections of soundwaves produced by the individual (¶229). DAVIDSON teaches that the wave generator produces noise and the wave sensor detects noise (¶218-¶219). These waves are compared with a memory of an oral signature to authenticate a user (¶224). DAVIDSON teaches that the wave generator generates a wave for a predetermined amount of time and then wave sensor captures reflected waves to capture overlap (¶220-¶221). DAVISON teaches that the identification methods can include a database that is used to create and collect oral signatures of users (¶342). DAVIDSON teaches that a conduit coupled to the housing is configured to allow a user to inhale or exhale into the conduit where the wave sensor and generator are positioned to transmit waves to be sensed by the sensor (¶84). DAVIDSON further teaches that a triggering event can be that the device has changed its position or moved a distance greater than a predefined range (¶260). DAVIDSON teaches that authentication is necessary to prevent the delivery of a substance to the individual if the authentication indicates that the individual is a child (¶45, ¶121, ¶173, ¶218).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified SUR to provide the proximity sensor uses the delayed correlation to detect one or more selected from the list consisting of: i. whether the aerosol delivery device has been removed from storage as taught in DAVIDSON. A person of ordinary skill in the art would obviously include triggering events that are based on position of the device (i.e. removed from storage). Doing so would prevent use of an aerosol device by a child (DAVIDSON ¶45, ¶121, ¶173, ¶218).
Regarding claim 10, modified SUR discloses the aerosol delivery system of claim 5 as discussed above. SUR does not disclose the audio sensor is operable to detect one or more characteristic biometric feature(s) of the person.
DAVIDSON teaches a system and method for authentication (abstract) of an e-cigarette (¶170). DAVIDSON teaches that a device may operate based on reflections of soundwaves produced by the individual (¶229). DAVIDSON teaches that authentication is necessary to prevent the delivery of a substance to the individual if the authentication indicates that the individual is a child (¶45, ¶121, ¶173, ¶218).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified SUR to provide the audio sensor is operable to detect one or more characteristic biometric feature(s) of the person as taught in DAVIDSON. A person of ordinary skill in the art would obviously include biometric identifiers as a means of identification (DAVIDSON ¶6). Doing so would prevent use of an aerosol device by a child (DAVIDSON ¶45, ¶121, ¶173, ¶218).
Regarding claim 11, modified SUR discloses the aerosol delivery system of claim 10 as discussed above. SUR does not disclose a characteristic biometric feature of the person comprises one or more selected from the list consisting of: i. their voice; ii. their heart rate; iii. their breathing rate; and iv. the type of their breathing. It is noted that applicant has recited a Markush group (see MPEP 2117). The limitation of the claim is met when any one of the alternatives in the group is present in the prior art. Others may be present but not relied upon for purposes of the written rejection.
DAVIDSON teaches a system and method for authentication (abstract) of an e-cigarette (¶170). DAVIDSON teaches that a device may operate based on reflections of soundwaves produced by the individual (¶229). DAVIDSON teaches that authentication is necessary to prevent the delivery of a substance to the individual if the authentication indicates that the individual is a child (¶45, ¶121, ¶173, ¶218).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified SUR to provide a characteristic biometric feature of the person comprises one or more selected from the list consisting of: i. their voice as taught in DAVIDSON. A person of ordinary skill in the art would obviously include biometric identifiers, including voice, as a means of identification (DAVIDSON ¶6). Doing so would prevent use of an aerosol device by a child (DAVIDSON ¶45, ¶121, ¶173, ¶218).
Regarding claim 12, modified SUR discloses the aerosol delivery system of claim 10 as discussed above. SUR does not disclose an electromagnetic sensor configured to detect one or more characteristic biometric feature(s) of person.
DAVIDSON teaches a system and method for authentication (abstract) of an e-cigarette (¶170). DAVIDSON teaches that a device may operate based on reflections of soundwaves produced by the individual (¶229). DAVIDSON teaches that authentication is necessary to prevent the delivery of a substance to the individual if the authentication indicates that the individual is a child (¶45, ¶121, ¶173, ¶218).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified SUR to provide an electromagnetic sensor configured to detect one or more characteristic biometric feature(s) of person as taught in DAVIDSON. A person of ordinary skill in the art would obviously include biometric identifiers, including voice, as a means of identification (DAVIDSON ¶6). Doing so would prevent use of an aerosol device by a child (DAVIDSON ¶45, ¶121, ¶173, ¶218).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over SUR as applied to claim 13 above, and further in view of US 20220287375 A1 (hereinafter BATISTA).
Regarding claim 15, SUR discloses the aerosol delivery system of claim 13 as discussed above. SUR does not disclose the second sensor is one of capacitance and configured to detect a holding pattern of the person.
BATISTA teaches an aerosol generating system and an interface element with contact sensing elements (abstract). BATISTA teaches that a capacitive sensor may respond to contact with a suitable body part of the user (¶165). BATISTA teaches that in use a first criterion is an authentication procedure (¶9). BATISTA teaches that the contact sensing elements may detect contact that indicates the size of a hand (¶9). BATISTA teaches that based on the input signals it may indicate that the user is a child and not satisfy the user authentication (¶9). Advantageously children with small hands will be prevented from enabling the first function (¶15). The term “holding pattern” in is used by the claim to mean the area, shape, or size characteristic of the user. Therefore, for purposes of examination, an indication of touch that results in the ability to characterize a user is considered to read upon the limitation of “a holding pattern”.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified SUR to provide the second sensor is one of capacitance and configured to detect a holding pattern of the person as taught in BATISTA. A person of ordinary skill in the art would obviously use sensors to detect different hand sizes. Doing so would advantageously prevent children from enabling an aerosol delivery system (BATISTA ¶15-¶16).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE L MOORE whose telephone number is (313)446-6537. The examiner can normally be reached Mon - Thurs 9 am to 5 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.
/STEPHANIE LYNN MOORE/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
Prosecution Insights