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 .
Claim Interpretation
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.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 17 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
More specifically, claim 17 discloses that the one or more heating elements comprise one or more heating elements. However, claim 16, from which claim 17 depends, already positively recites that the one or more heating elements comprise one or more heating elements. As such, said claim is rejected as failing to further limit. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1-13 and 15-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Chiao et al (U.S. Publication No. 2003/0206834).
Chiao discloses a wearable electronic device for providing or affecting smell (Figures 28A & 28B), comprising:
One or more odor manipulation units (53) each respectively operable to provide or affect smell perceivable by a user of the wearable electronic device (paragraphs 40 & 111); and
A control circuit arrangement (51) operably coupled with the one or more odor manipulation units (53) for operating the one or more odor manipulation units (paragraphs 40 & 111).
Concerning claims 2 & 3, Chiao also discloses that the wearable electronic device further comprises a flexible and/or elastomeric substrate; and wherein the one or more odor manipulation units and the control circuit arrangement are supported by or mounted to the substrate (Figures 28A & 28B; paragraphs 40 & 111).
Regarding claim 4, Chiao continues to disclose that the substrate is constructed to enable or facilitate wearing of the wearable electronic device on or near a nose of the user (Figures 28A & 28B).
With respect to claim 5, Chiao further discloses that the one or more odor manipulation units comprises (53): a first odor manipulation unit (53) configured to be placed closer to one nostril of the user when the wearable electronic device is worn on or near the nose of the user, and a second odor manipulation unit (53) configured to be placed closer to another nostril of the user when the wearable electronic device is worn on or near the nose of the user (Figures 28A & 28B).
Concerning claim 6, the reference also discloses that the control circuit arrangement is arranged to independently operate the first odor manipulation unit and the second odor manipulation unit (Figures 28A & 28B; paragraphs 31, 33, 40, 42 and 113-115).
Regarding claim 7, Chiao further discloses that the first and/or second odor manipulation units (53) comprises two or more odor manipulators (numeral 30; Figure 7; paragraph 100).
With respect to claim 8, Chiao continues to disclose that the first and/or second odor manipulation units (53) comprises two or more odor manipulators (30), each of the two or more odor manipulators (30) of the first and/or second odor manipulation units (53) is respectively arranged to provide a respective odor (paragraph 100; Figure 7).
Concerning claim 9, Chiao also discloses that the control circuit arrangement (51) is arranged to control activation and/or deactivation of each of the two or more odor manipulators (30) of the first and/or second odor manipulation unit (53) to affect spatial and/or temporal odor profile provided by the first and/or second odor manipulation unit (paragraphs 31, 33, 40, 42 and 113-115).
Regarding claim 10, Chiao discloses that the control circuit arrangement comprises one or more processors and memory storing one or more sets of control instructions each arranged to be operated by the one or more processors to control respective activation and/or deactivation of one or more of the odor manipulators (30) of the first odor manipulation unit (53) and/or one or more of the odor manipulators (30) of the second odor manipulation unit (53), wherein each of the one or more sets of control instructions is associated with a respective message recognizable by the user (paragraphs 110-116).
With respect to claim 11, the reference further discloses that the one or more odor manipulation units (53) comprises an odor manipulator (30); and
Wherein the odor manipulator comprise a body defining:
A chamber (6) for receiving one or more chemical substances, and an interface through which the one or more chemical substances can be released from the body to provide or affect smell perceivable by the user (paragraph 100; Figures 6 & 7).
Concerning claim 12, Chiao also discloses that the odor manipulator (30) further comprises the one or more chemical substances received in the chamber (6), and wherein the one or more chemical substances can provide or generate an odor to affect smell perceivable by the user (paragraphs 100 & 111).
With respect to claim 13, it is first noted that the chemical substance is not positively recited in claim 11. Thus, a device that is capable of operating with the limitations recited in claim 13 will meet said claim. As such, Chiao further discloses that the device is capable of operating with the one or more chemical substances that are included in a medium arranged to be received in the chamber (6), and wherein the medium includes one or more phase change materials that can be dissolved or vaporized to facilitate release of the one or more chemical substances from the body through the interface (paragraphs 89-100; Figures 4-6).
Regarding claim 15, Chiao continues to disclose that the interface comprises one or more through-holes (35) through which the one or more chemical substances can pass (Figures 6 & 7); and
Wherein the body comprises a shield (i.e., micro-valve) providing the one or more through-holes (35) of the interface, the shield is shaped and/or sized to prevent unwanted escape or removal of non-gaseous phase of the medium from the chamber (paragraph 92; Figure 6C).
Concerning claims 16 & 17, Chiao discloses that the odor manipulator further comprises:
A release control mechanism (10) arranged at least partly in the body (Figure 4C) and operable to control release of the one or more chemical substances from the body through the interface (11); and
Wherein the release control mechanism (10) comprises a heating mechanism with one or more heating elements (16) operable to provide heat to facilitate release of the one or more chemical substances from the body through the interface (paragraphs 89 & 92; Figures 4 & 5).
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.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Chiao et al. (U.S. Publication No. 2003/0206834) in view of Edwards et al. (U.S. Publication No. 2014/0377130).
Chiao is relied upon as set forth above. While Chiao discloses that the odor manipulator comprises a release mechanism with a heating element (paragraphs 89 & 92; Figures 4 & 5), the reference does not appear to disclose that the odor manipulator further comprises the medium with the one or more chemical substances received in the chamber, and wherein the medium comprises wax. Edwards discloses a wearable electronic device for providing or affecting smell (Figures 1, 2 & 13; Abstract), wherein the device includes an odor manipulator with a body (100) defining a chamber (Figure 13B) and an interface through which one or more chemical substances can be released from the body by activation of an odor manipulator comprising a heating element (112) to provide or affect smell perceivable by a user (paragraphs 65-74 and 134-137; Figures 1-3 and 13). The reference continues to disclose that the odor manipulator further comprises a wax medium with the one or more chemical substances received in the chamber in order to control the release rate of the chemical substance during periods of non-use as well as operating periods of heating (paragraphs 66-69). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the odor manipulator of Chiao with a wax medium with the one or more chemical substances received in the chamber in order to control the release rate of the chemical substance during periods of non-use as well as operating periods of heating as exemplified by Edwards.
As such, claim 14 is not patentable over Chiao in view of Edwards.
Claims 18, 19 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Chiao et al. (U.S. Publication No. 2003/0206834) in view of Blackley (U.S. Publication No. 2016/0361452).
Regarding claims 18 & 19, Chiao is relied upon as set forth above. While the reference discloses that the device vaporizes a chemical substance with a heater (paragraphs 92-94), Chiao does not appear to disclose that the release control mechanism further comprises a temperature sensor operable as at least part of the heating element for providing temperature information that indicates a temperature in the chamber or a temperature of the one or more heating elements. Blackley discloses a device (Figures 2-8) for vaporizing a chemical substance with a heating element (214) that is a part of a release control mechanism (Abstract; paragraph 96). The reference continues to disclose that the release control mechanism further comprises a temperature sensor operable as at least part of the heating element (214) for providing a temperature of the heating element in order to independently control the vaporization rate of the chemical (paragraph 96). As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the release control mechanism of Chiao with a temperature sensor operable as at least part of the heating element for providing a temperature of the heating element in order to independently control the vaporization rate of the chemical as exemplified by Blackley.
Therefore, claims 18 & 19 are not patentable over Chiao in view of Blackley.
Regarding claim 25, Chiao does not appear to disclose a temperature control circuit arrangement operably connected with the one or more heating elements and the temperature sensor for controlling operation of the one or more heating elements based on temperature information provided by the temperature sensor. Nonetheless, Blackley continues to disclose a temperature control circuit arrangement (i.e., processor and associated components) operably connected with the one or more heating elements (214) and the temperature sensor for controlling operation of the one or more heating elements based on temperature information provided by the temperature sensor in order to accurately control the vaporization rate of the chemical substance (paragraphs 55, 64, 65 and 96). Therefore, it would have also been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize a temperature control circuit arrangement operably connected with the one or more heating elements and the temperature sensor in Chiao for controlling operation of the one or more heating elements based on temperature information provided by the temperature sensor in order to accurately control the vaporization rate of the chemical substance as exemplified by Blackley.
Thus, claim 25 is not patentable over Chiao in view of Blackley as well.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Chiao et al. (U.S. Publication No. 2003/0206834) in view of Blackley (U.S. Publication No. 2016/0361452) as applied to claim 19 above, and further in view of Chen et al. (U.S. Publication No. 2020/0138996).
Chiao is relied upon as set forth above. Chen does not appear to disclose that the heating element is a heating electrode. Chen discloses a device for providing or affecting smell, wherein the device is provided with an odor manipulation unit that includes a release control mechanism with a heating that heats a chemical substance located in a chamber (Abstract; Figures 1 & 2). The reference continues to disclose that the heating element is a heating electrode in order to produce adjustable and encoded fragrances with the device (paragraphs 22 and 23). As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize heating electrodes as the heating elements in Chiao in order to produce adjustable and encoded fragrances with the device as exemplified by Chen.
Therefore, claim 20 is not patentable over Chiao in view of Blackley and Chen.
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.
Claims 1-20 and 25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-30 of copending Application No. 18/162,049 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because all of the limitations of the instant application are met by claims 1-30 of the reference application. More specifically, each claim a wearable electronic device for providing or affecting smell that includes one or more odor manipulation units each respectively operable to provide or affect smell perceivable by a user of the wearable electronic device. Further, each claim a control circuit arrangement operably coupled with the one or more odor manipulation units for operating the one or more odor manipulation units. As such, the obviousness type double patenting rejection exists.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-20 and 25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 and 14-17 of copending Application No. 17/655,417 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because all of the limitations of the instant application are met by claims 1-11 and 14-17 of the reference application. More specifically, each claim a wearable electronic device for providing or affecting smell that includes one or more odor manipulation units each respectively operable to provide or affect smell perceivable by a user of the wearable electronic device. Further, each claim a control circuit arrangement operably coupled with the one or more odor manipulation units for operating the one or more odor manipulation units. As such, the obviousness type double patenting rejection exists.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Allowable Subject Matter
Claims 21-24 and 26 are 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN C JOYNER whose telephone number is (571)272-2709. The examiner can normally be reached Monday-Friday 8:00AM-4:30PM.
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/KEVIN JOYNER/Primary Examiner, Art Unit 1799