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 .
DETAILED ACTION
This Office Action is in response to the Amendment filed 05/06/2026. In the instant Amendment, claim 1 was amended; claims 4-5 and 11-20 are cancelled; claim 1 is an independent claim. Claims 1-3 and 6-10 are pending in this application.THIS ACTION IS MADE FINAL
Response to Arguments
The non-statutory double patenting rejection to claims 1-3 and 6-10 is maintained.
In the attempt to promote compact prosecution, the Examiner contacted the applicant’s representative to see if he would file an e-terminal disclaimer to place the case in condition for allowance. The attorney wasn’t able to contact the inventor and did not have power of attorney to file an e-terminal disclaimer on the inventor’s behalf. Thus, the Examiner is sending out a final rejection with only non-statutory obvious double patenting rejection.
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 1-3 and 6-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of US Patent No: 11,882,438. Although, the claims at issue are not identical they are not patentably distinct because claims 1-9 of the Patent No. 11,882,438 anticipated all limitations recited in claims 1-3 and 6-10 of the instant application.
Further, claims 1-3 and 6-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of US Patent No: 11,882,438 in view of Tremblay et al (“Tremblay,” US 20150181945), Minskoff et al (“Minskoff,” US 20140246035) and further in view of Conley et al (“Conley, US 20130220315).
Regarding claim 1 of the instant application, claim 1 of US Patent No: 11,882,438 discloses all limitations of claim 1 but does not explicitly disclose wherein the application is configured to: determine that the identification data of the user is associated with an identifier of the nicotine dispenser and satisfies a first verification technique
However, in an analogous art, Tremblay discloses wherein the application is configured to: determine that the identification data of the user is associated with an identifier of the nicotine dispenser and satisfies a first verification technique, (Tremblay, [0171]-[0172], [0160]-[0161] describes responsive to determining the user’s age [identification data of the user] is associated with the serial numbers/IP addresses [identifier of nicotine dispenser] of the electronic cigarette [nicotine dispenser] retrieve the verified age [user information] by passcode or biometric identifier; also see [0240], [0207], [0148])
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Tremblay with US Patent No: 11,882,438 to include wherein the application is configured to: determine that the identification data of the user is associated with an identifier of the nicotine dispenser and satisfies a first verification technique. One would have been motivated to and electronic vaping device to enhance or facilitate its use (Tremblay, [0007]).
US Patent No: 11,882,438 fails to explicitly disclose the first verification technique comprising comparing an age of the user specified in the identification data to an age stored in a user profile of the user.
However, in an analogous art, Minskoff discloses the first verification technique comprising comparing an age of the user specified in the identification data to an age stored in a user profile of the user, (Minskoff, [0210] describes verifying the user’s age by comparing the user’s age at the time of establishing a unique identification profile for the end user to prevent unintended use or abuse of the device by minors. Demographic data can be used to establish a user profile)
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Minskoff with US Patent No: 11,882,438 to include the first verification technique comprising comparing an age of the user specified in the identification data to an age stored in a user profile of the user. One would have been motivated to provide electronic flameless vapor inhaler unit that stores and outputs data and that may simulate a cigarette or deliver nicotine and other medications to the oral mucosa, pharyngeal mucosa, tracheal, and pulmonary membranes (Minskoff, [0002]).
US Patent No: 11,882,438 fails to explicitly disclose responsive to the first verification technique and the second verification technique being satisfied, communicate the identification signal from the application on the personal communication device to the nicotine dispenser via the wireless communication link in order to physically unlock the nicotine dispenser; and wherein the nicotine dispenser is configured to physically unlock and allow use of the nicotine dispenser responsive to receipt of the identification signal from the application on the personal communication device
However, in an analogous art, Conley discloses responsive to the first verification technique and the second verification technique being satisfied, communicate the identification signal from the application on the personal communication device to the nicotine dispenser via the wireless communication link in order to physically unlock the nicotine dispenser; and wherein the nicotine dispenser is configured to physically unlock and allow use of the nicotine dispenser responsive to receipt of the identification signal from the application on the personal communication device, (Conley describes [0063], [0067]-[0070], responsive to the first verification technique and the second verification technique being satisfied, communicate the identification signal [0067], from the application [0065] on the personal communication device [0065]-[0066] to the nicotine dispenser [0003],[0078] via the wireless communication link [0065] in order to physically unlock the nicotine dispenser; [0003],[0078])
and wherein the nicotine dispenser [0003],[0078] is configured to physically unlock and allow use [0067]-[0070], of the nicotine dispenser [0003],[0078], responsive to receipt of the identification signal [0067] from the application [0065] on the personal communication device [0065]-[0066])
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Conley with US Patent No: 11,882,438 to include responsive to the first verification technique and the second verification technique being satisfied, communicate the identification signal from the application on the personal communication device to the nicotine dispenser via the wireless communication link in order to physically unlock the nicotine dispenser; and wherein the nicotine dispenser is configured to physically unlock and allow use of the nicotine dispenser responsive to receipt of the identification signal from the application on the personal communication device. One would have been motivated to provide an electronic vaporizer (Conley, [0003]).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES J WILCOX whose telephone number is (571)270-3774. The examiner can normally be reached M-F: 8 A.M. to 5 P.M..
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, Luu T. Pham can be reached at (571)270-5002. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES J WILCOX/Examiner, Art Unit 2439
/LUU T PHAM/Supervisory Patent Examiner, Art Unit 2439
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