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 .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Status of the Claims
Claims 1-8 are pending. Claim 3 has been amended.
Response to Amendments
The Examiner acknowledges Applicant's response filed on 8/7/2026 containing amendments and remarks to the claims.
Response to Arguments
Applicant's arguments filed 8/7/2026 have been fully considered but they are not persuasive.
Applicant argues that the field of endeavor of Zhang is not the same as the field of Rosser, so “Zhang is non-analogous art to Rosser” (Remarks, Page 5). This argument is not persuasive as Applicant is not using the correct standard for what constitutes a proper reference for use in an obviousness rejection under 35 U.S.C. 103. Specifically, “[i]n order for a reference to be proper for use in an obviousness rejection under 35 U.S.C. 103, the reference must be analogous art to the claimed invention” (MPEP § 2141.01(a)(I), emphasis added). Further, “[a] reference is analogous art to the claimed invention if . . . the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention)” (MPEP § 2141.01(a)(I)). The problem faced by the inventor is that “impurities, such as water . . . will enter into the MEMS Die from the acoustic holes, which will lead to the degradation of the performance or damage of the MEMS Die” (¶ 0006 of Applicant’s Specification). Zhang is directed to “a micro-electromechanical system (MEMS) microphone” (¶ 0087 of Zhang) in which the internal components are protected from impurities such as water by the use of a “waterproof membrane” (¶ 0128). As such, even if Zhang is non-analogous art to Rosser, which is not conceded, Zhang is reasonably pertinent to the problem faced by the inventor and, therefore, analogous prior art.
Applicant further argues that “Zhang’s structure is incompatible with the present application, and therefore no motivation to combine Exists” (Remarks, Page 5). This argument is not persuasive as the rejection is not combining Zhang’s structure with “the present application”. Instead, the structure of Rosser is modified in view of the teachings of Zhang.
Applicant further argues that “[p]roviding a waterproof breathable membrane over a noise-cancelling port would physically obstruct airflow and degrade the acoustic performance essential to Zhang’s core function. A person of ordinary skill in the art would have no reason to take a sensor designed for optimal acoustic transmission (Zhang) and cover its ports with a membrane that impairs that transmission” (Remarks, Page 5). The argument is not persuasive as Zhang already disclosed using a waterproof membrane over the ports (“the waterproof membrane component 4c1 may be disposed inside the accommodation space 2215 and cover the sound inlet 2213”, Figs. 24-25, ¶ 0128 of Zhang). As such, modifying the waterproof membrane of Zhang to be breathable would not “obstruct airflow” as alleged by Applicant. Instead, making it breathable would increase airflow.
Applicant further argues that “the feature (waterproof membrane) is affirmatively detrimental to the function that Zhang was designed to perform” (Remarks, Pages 5-6). This argument is not persuasive as a waterproof membrane is not “affirmatively detrimental” to Zhang because Zhang discloses a waterproof membrane (“the waterproof membrane component 4c1 may be disposed inside the accommodation space 2215 and cover the sound inlet 2213”, Figs. 24-25, ¶ 0128 of Zhang).
Applicant further argues that “Han’s ‘waterproof breathable membrane’ is a hard protective structure . . . [and a] hard cover that does not permit airflow would be unsuitable” (Remarks, Page 6). This argument is not persuasive as Applicant has not provided any evidence that Han’s structure “does not permit airflow”. To the contrary, the structure being “breathable” (¶ 0042 of Han) indicates that it permits airflow.
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 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Rosser et al. (US 2023/0354909 A1) in view of Zhang et al. (US 2021/0250678 A1), Han et al. (US 2023/0384178 A1), and Talledo (US 2024/0124300 A1).
Regarding claim 1, Rosser discloses an electronic cigarette (“aerosol provision system 10, such as an e-cigarette”, Fig. 1, ¶ 0031), comprising:
a cigarette body housing (“aerosol provision device 20”, Fig. 1, ¶ 0031); and
a MEMS sensor (“a microphone 25, such as a MicroElectrical-Mechanical System (MEMS) microphone” in Fig. 2C, ¶ 0043) located in the cigarette body housing (see Fig. 2A).
However, Rosser does not disclose the details of the MEMS sensor to determine if it comprises a shell with a receiving cavity, comprising a first acoustic hole and a second acoustic hole penetrating the shell and communicating with the receiving cavity and an outside; a MEMS Die with a back cavity received in the receiving cavity; an ASIC Die located in the receiving cavity and electrically connected to the MEMS Die; a first waterproof breathable membrane fixed to the shell and completely covering the first acoustic hole; and a second waterproof breathable membrane fixed to the shell and completely covering the second acoustic hole.
Zhang, in the field of MEMS sensors, discloses a MEMS sensor (“microphone apparatus [which] may include a microphone and a vibration sensor”, ¶ 0004, where the microphone corresponds to “air conduction microphone 910”, Fig. 9-A, ¶ 0092, and the vibration sensor corresponds to “dual-link microphone 930”, Fig. 9-C, ¶ 0092, and each of the “air conduction microphone 910” and the “dual-link microphone 930” comprise a MEMS microphone, “air conduction microphone 910 may be a micro-electromechanical system (MEMS) microphone”, ¶ 0087, and “930 may be obtained by punching a hole at a bottom of . . . the air conduction microphone in Fig. 9-A”, ¶ 0090), the MEMS sensor comprising:
a shell (combination of “printed circuit board (PCB) 934” and “housing 932”, Fig. 9-C, ¶ 0090) with a receiving cavity (“front cavity 935”, Fig. 9-C, ¶ 0090), comprising a first acoustic hole (“opening 931”b Fig. 9-C, ¶ 0090) and a second acoustic hole (“opening 938”, Fig. 9-C, ¶ 0090) penetrating the shell and communicating with the receiving cavity and an outside (see Fig. 9-C);
a MEMS Die (“diaphragm 936” and the supports separating “diaphragm 936” from PCB 934 in Fig. 9-C, ¶ 0090) with a back cavity (“back cavity 937”, Fig. 9-C, ¶ 0090) received in the receiving cavity (see Fig. 9-C); and
an ASIC Die (“integrated circuit (ASIC) 933”, Fig. 9-C, ¶ 0090) located in the receiving cavity (see Fig. 9-C).
One of ordinary skill in the art would have understood that there was a benefit to using this configuration of a MEMS sensor in that it offsets vibration noise (¶ 0092 of Zhang). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have used the MEMS sensor configuration taught by Zhang for the MEMS sensor taught by Rosser, in order to obtain this benefit.
Zhang further discloses using waterproof membranes fixed to the shell to completely cover openings (“the waterproof membrane component 4c1 may be disposed inside the accommodation space 2215 and cover the sound inlet 2213”, Figs. 24-25, ¶ 0128). However, Zhang does not explicitly disclose that the waterproof membranes are breathable.
Han, in the field of MEMS sensors, discloses that waterproof membranes may be formed to be breathable (“a waterproof membrane (e.g., a waterproof breathable fabric that allows air, but not water, to pass through the fabric)”, ¶ 0042). One of ordinary skill in the art would have understood that there was a benefit to using membranes that are breathable as well as waterproof in that it allows for airflow to reach the microphone, thereby increasing the sensitivity of the microphone, while also acting as a barrier to water and debris. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to form first and second waterproof breathable membranes fixed to the shell and completely covering the first and second acoustic holes of the MEMS sensor, respectively, in order to obtain this benefit.
Zhang does not explicitly disclose that the ASIC die is electrically connected to the MEMS die.
Talledo, in the field of MEMS sensors, discloses that an ASIC die (“ASIC die 110”, Fig. 1A, ¶ 0036) may be electrically connected to a MEMS die (“MEMS die 116a”, Fig. 1A, ¶ 0036, with the electrical connection via “bonding wire 113” in Fig. 1A, “the bonding wire 113 coupling the contact pad 111 of the ASIC die 110 to the contact pad 115 of the MEMS die 116a”, ¶ 0036). Talledo also teaches a benefit to electrically connecting the ASIC die to the MEMS die in that it allows for instruction, control, and data signals to be passed between the ASIC die and the MEMS die (“The bonding wire 113 allows electrical signals to be transmitted from the ASIC die 110 to the MEMS die 116a, and vice versa. These electrical signals may be instruction signals, control signals, data signals, or any other types of electrical signals for communicating information between electrical components”, ¶ 0036). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to electrically connect the ASIC die and MEMS die, as taught by Talledo, in the MEMS sensor taught by Zhang, in order to obtain this benefit.
Although Zhang, Han, and Talledo are in the field of MEMS sensors, they are reasonably pertinent to the particular problem with which Rosser (and the current application) was concerned (i.e., devices with MEMS sensors). One of ordinary skill in the art would have looked to prior art concerning MEMS sensors because Rosser teaches using MEMS sensors (see MPEP § 2141.01(a)(I)).
Regarding claim 2, Rosser in view of Zhang, Han, and Talledo disclose the electronic cigarette described in claim 1, as discussed above. With regards to the specific placement of the first waterproof breathable membrane in the device of the combination, as long as the membrane covers the first acoustic hole, affixing the membrane to the inside of the shell or the outside of the shell does not affect the operation of the membrane, as the first acoustic hole is still covered, and the interior of the shell is protected from moisture and debris. As such, fixing the first waterproof breathable membrane to an inside of the shell amounts to an obvious rearrangement of parts (MPEP § 2144(VI)(C)).
Regarding claim 3, Rosser in view of Zhang, Han, and Talledo disclose the electronic cigarette described in claim 1, as discussed above. Zhang further discloses wherein the second acoustic hole and the first acoustic hole are provided on opposite sides of the shell (see Fig. 9-C), and the second acoustic hole is provided orthogonally to the back cavity (see Fig. 9-C).
Regarding claim 4, Rosser in view of Zhang, Han, and Talledo disclose the electronic cigarette described in claim 1, as discussed above. With regards to the specific placement of the second waterproof breathable membrane in the device of the combination, as long as the membrane covers the second acoustic hole, affixing the membrane to the inside of the shell or the outside of the shell does not affect the operation of the membrane, as the second acoustic hole is still covered, and the interior of the shell is protected from moisture and debris. As such, fixing the second waterproof breathable membrane to an inside of the shell amounts to an obvious rearrangement of parts (MPEP § 2144(VI)(C)).
Regarding claim 5, Rosser in view of Zhang, Han, and Talledo disclose the electronic cigarette described in claim 1, as discussed above. Zhang further discloses that the MEMS sensor comprises a plurality of ASIC dies (“integrated circuit (ASIC) 933” in “dual-link microphone 930”, Fig. 9-C, ¶ 0090, and “integrated circuit (ASIC) 913” in “air conduction microphone 910”, Fig. 9-A, ¶ 0087), and each of the ASIC dies is connected to the MEMS die (as claim 5 uses the term “connected”, which is different from the term “electrically connected” of claim 1, “connected” is interpreted as including physical connection; both ASIC dies are indirectly physically connected to the MEMs die of “dual-link microphone 930”, as they are affixed to the same overall structure, “the microphone and the vibration sensor may be independently connected to a same housing”, ¶ 0013).
Regarding claim 6, Rosser in view of Zhang, Han, and Talledo disclose the electronic cigarette described in claim 1, as discussed above. Zhang further discloses wherein the shell comprises a circuit board (“printed circuit board (PCB) 934”, Fig. 9-C, ¶ 0090) and an upper cover (“housing 932”, Fig. 9-C, ¶ 0090) assembled with the circuit board (see Fig. 9-C), the upper cover is jointly enclosed with the circuit board to form the receiving cavity (see Fig. 9-C), the ASIC die is fixed to the circuit board (see Fig. 9-C), the MEMS die is fixed to the circuit board (see Fig. 9-C), the first acoustic hole is provided on the upper cover (see Fig. 9-C), and the second acoustic hole is provide on the circuit board (see Fig. 9-C).
Zhang does not explicitly disclose that the ASIC die and the MEMS die are electrically connected to the circuit board.
Talledo discloses that an ASIC die (“ASIC die 110”, Fig. 1A, ¶ 0036) may be electrically connected to a circuit board (“substrate 102”, Fig. 1A, ¶ 0034; “ASIC die 110 includes a contact pad 114 coupled to active and passive components in the substrate 102 by a bonding wire 112”, ¶ 0034) and a MEMS die (“MEMS die 116a”, Fig. 1A, ¶ 0036) is electrically connected to the circuit board (“contact pad 122 of the MEMS die 116a is coupled to an end of the bonding wire 124 and another end of the bonding wire 124 is coupled to the second contact pad 119 in the substrate 102”, ¶ 0038). One of ordinary skill in the art would have understood that there was a benefit to electrically connecting the ASIC die and the MEMS die to the circuit board in that it allows for power and electrical signals to be provided to the ASIC die and the MEMS die from outside of the shell (¶ 0035, 0038). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to electrically connect the ASIC die and the MEMS die to the circuit board, in order to obtain this benefit.
Regarding claim 7, Rosser in view of Zhang, Han, and Talledo disclose the electronic cigarette described in claim 6, as discussed above. Zhang further discloses wherein the upper cover and the circuit board are jointly enclosed to form the receiving cavity which is rectangular (see Fig. 9-C).
Regarding claim 8, Rosser in view of Zhang, Han, and Talledo disclose the electronic cigarette described in claim 6, as discussed above. Talledo further discloses wherein the ASIC die is electrically connected to the circuit board via a connecting wire (“bonding wire 112”, Fig. 1A, ¶ 0034), and the MEMS die is electrically connected to the ASIC die and the circuit board via connecting wires respectively (“bonding wire 113”, Fig. 1A, ¶ 0036, and “bonding wire 124”, Fig. 1A, ¶ 0038).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/C.G.C./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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