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 Rejections - 35 USC § 102
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.
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)(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.
Claim(s) 21, 22, 29, 30 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Cochand et al. (US 9814263 .
Cochand discloses in reference to claim:
21. An aerosol delivery device 100 comprising: a reservoir 113 configured to retain an aerosol precursor composition 115; an atomizer 117/119 controllable to activate and vaporize components of the aerosol precursor composition; a sensor (see figure 5) comprising a temperature sensor configured to measure the temperature of the atomizer and generate a corresponding signal; and a control component configured to receive the corresponding signal and determine a volume of aerosol precursor composition at the atomizer 117/119 (The increase in rate of temperature rise for a given applied power is a result of depletion of aerosol-forming substrate in the vicinity of the heater ( read as a volume of aerosol precursor composition at the atomizer 117/119 ) as a result of emptying of the liquid storage portion. In this example, this leads to drying of the wick.), distinct from aerosol precursor composition in the reservoir 113, based on the temperature so measured, the control component being configured to control at least one functional element (e.g. a display) of the aerosol delivery device in response thereto.
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(49) Once it has been determined when the amount of liquid in the liquid storage portion has decreased to a threshold (NOTE this is done by “sensing” a volume of aerosol precursor composition at the atomizer 117/119 ), the user may be advised (read as controlling a functional element of the device). For example, the electric circuitry, on determining that the amount of liquid aerosol-forming substrate in the liquid storage portion, has decreased to a threshold, may indicate this to a user. For example, if the aerosol generating system includes a user display, it may be indicated to the user, via the user display, that the liquid storage portion is empty or nearly empty and may provide an estimate of the number of remaining puffs. Alternatively or additionally, an audible sound may indicate to the user that the liquid storage portion is empty or nearly empty. Alternative methods of indicating to the user that the liquid storage portion is empty or nearly empty are, of course, possible. An advantage of advising the user is that the user is then able to prepare to replace or refill the liquid storage portion.
Cochand discloses a control component configured to receive a signal and determine a volume of aerosol precursor composition at the atomizer, distinct from the aerosol precursor composition in the reservoir. [Par, BR; “L.By monitoring R.sub heater over the life of the liquid storage portion, an increase in R.sub heater can be determined. Hence, an increase in resistance, which may indicate a temperature increase because the capillary wick is dry, can be detected...” Furthermore in Par. 89; “.. Resistor and microprocessor measure the heat, Thus, an increase in temperature, which may correspond to the liquid storage portion being empty or nearly empty, can be detected.
Cochand discloses the benefits of determining a volume of aerosol precursor composition at the
atomizer in that it ensures that the aerosol has desired properties when being inhaled by a user. [Par.
64}
22. (New) The aerosol delivery device of claim 21, wherein the sensor is further configured to measure an additional characteristic of the aerosol delivery device and generate another corresponding signal, wherein the additional characteristic comprises at least one of the flow rate of the aerosol precursor composition, a pressure of the flow of the aerosol precursor composition, a volumetric pressure of the aerosol precursor composition, or a humidity of an environment of the aerosol delivery device.
Note the Cochand uses the sensing arrangement of figure 5 to sense temperature of the heating element at the atomizer and correlates the volume of the aerosol precursor, and further, when the reservoir is empty, correlates a zero flow rate. As such it can be said that the sensing arrangement both measures temperature and flow rate.
The above explanation applies mutatis mutandis to claims 29-30.
Claim Rejections - 35 USC § 103
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.
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.
Claim(s) 23, 26, 27, 31, 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cochand et al. (US 9814263) in view of Marsh (US 2017/0048930)
Regarding Claim 23 and 31, Cochand discloses all limitations of the invention except the sensor is or includes an optical liquid-level sensor configured to measure the reflectance of light at the atomizer, and the control component is configured to determine the volume of aerosol precursor composition based on the reflectance so measured. Cochand discloses controlling an aerosol composition at the atomizer. Cochand discloses the benefits of determining a volume of aerosol precursor composition at the atomizer in that it ensures that the aerosol has desired properties when being inhaled by a user, Far. 64} Cochand does not disclose the sensor is or includes an optical liquid-level sensor configured to measure the reflectance of light, and the control component is configured to determine the volume of aerosol precursor composition based on the reflectance so measured.
Marsh much like Cochand pertains to a electronic vaporizer system in which e-liquid (aerosol) is passed through a vaporizer. Marsh discloses the sensor is or includes an optical liquid-level sensor configured to measure the reflectance of light [Par. 101, Lines 16- 22] and the control component is configured to determine the volume of aerosol precursor composition based on the reflectance so measured that indicates a lux value of luminescence. [Par. 221, Lines 1-9; Par. 101, Lines 16-22; the reference clearly discloses that when e-liquid is detected, the information is used to control the piezo-pump to operate at an optimal cycle time/frequency, with one said sensed information used is an infra-red light sensor (passing light through the tube and detecting high or low levels of light absorption). It is obvious to the artisan, that if the controller is capable of indicating a level of high/low light absorption, that it would also be able to indicate a lux value of luminescence, considering that a lux value is used to measure the intensity of light that hits or passes through a surface, which in this instance would be the e-liquid. (Marsh discloses the benefits of an optical liquid-level sensor and the control component being configure to determine the volume of aerosol precursor based on the reflectance measured is to determine at what frequency the pump should operate [Par. 101, Lines 6-7] and adjust various parameter to achieve optimal pumping. [Par. 102, Lines 15-17] Therefore, it would have been obvious to one with ordinary skill in the art to modify the sensor and the controller as taught by Cochand in view of the optical liquid-level sensor and controller as taught by Marsh to further include the sensor is or includes an optical liquid-level sensor configured to measure the reflectance of light at the atomizer, and the control component is configured to determine the volume of aerosol precursor composition based on the reflectance so measured so measured that indicates a lux value of luminescence to achieve optimal pumping. [Par. 102, Lines 15-17] . The above applies mutatis mutandis to claim 31.
Regarding Claim 26, 27 and 34,
Cochand discloses (49) Once it has been determined when the amount of liquid in the liquid storage portion has decreased to a threshold, the user may be advised. For example, the electric circuitry, on determining that the amount of liquid aerosol-forming substrate in the liquid storage portion, has decreased to a threshold, may indicate this to a user. For example, if the aerosol generating system includes a user display, it may be indicated to the user, via the user display, that the liquid storage portion is empty or nearly empty and may provide an estimate of the number of remaining puffs. Alternatively or additionally, an audible sound may indicate to the user that the liquid storage portion is empty or nearly empty. Alternative methods of indicating to the user that the liquid storage portion is empty or nearly empty are, of course, possible. An advantage of advising the user is that the user is then able to prepare to replace or refill the liquid storage portion.
Cochand discloses all limitations of the invention except a communication interface configured to enable wireless communication of the second corresponding signal or another signal that conveys the volume of the aerosol precursor composition within the refillable reservoir so measured to a remote ordering system configured to automatically order a container for refilling the reservoir in response to the volume being below a second predetermined threshold.
Marsh, much like Cochand, pertains to an electronic vaporizer system in which e-liquid (aerosol) is passed through a vaporizer. [abstract] Marsh discloses the reservoir is a refillable reservoir [Par. 241, Lines 1-3]; a liquid-level sensor configured to measure a volume of the aerosol precursor composition within the refillable reservoir and generate a second corresponding signal [Par. 205, “...this means that the PV (or case or cartridge or an associated application running on a smartphone) can accurately determine the total consumption of e-liquid and/or the amount of e-liquid remaining in a cartridge and also in the PV itself. This in turn can be used in the automatic re-ordering function--for example, when the system knows that the cartridge is down to its last 20% by volume of e-liquid, then the app running on the user's smartphone can prompt the user with a message asking if the user would like to order a replacement cartridge or cartridges. ...”; the reference clearly states that once a cartridge is down to it’s last 20% (a second predetermined threshold), a signal is send corresponding to said threshold to a user.]. a communication interface configured to enable wireless communication of the second corresponding signal or another signal that conveys the volume of the aerosol precursor composition within the refillable reservoir so measured to a remote ordering system configured to automatically order a container for refilling the reservoir in response to the volume being below a second predetermined threshold. [Par. 63; “...when the case detects that the level of e-liquid in the cartridge is running low, then it sends a message to the app on the user's smartphone, alerting the user to that. The app gives the user the option of ordering replacement cartridges from an e-fulfillment platform. The case could also include a 3G, LTE or other form of wireless data module for direct communication with a remote server...”] Marsh discloses the benefits of including a liquid-level sensor and a communication interface as being able to cease pumping operation to avoid over-filling the personal vaporizer [Par. 223, Lines 3-4] and being able to have the system auto-refill so that a user never runs out of capsules as well as diminishing the need to monitor a user’s level of liquid.
Marsh discloses: (162) Because the amounts delivered can be accurately metered, this means that the PV (or case or cartridge or an associated application running on a smartphone) can accurately determine the total consumption of e-liquid and/or the amount of e-liquid remaining in a cartridge and also in the PV itself. This in turn can be used in the automatic re-ordering function—for example, when the system knows that the cartridge is down to its last 20% by volume of e-liquid, then the app running on the user's smartphone can prompt the user with a message asking if the user would like to order a replacement cartridge or cartridges. Low-cost piezo-electric pumps used ordinarily for delivering ink in an inkjet printer may be used, as well as more costly pumps, such as those made for pumping blood plasma. Note that the piezo-electric pump is quite a high cost item and so suitable for premium category electronic vaporiser devices. Where minimizing costs is critical, then a mechanical pumping arrangement, as for example described in WO 2015/128665, can be used instead.
Therefore, it would have been obvious to one with ordinary skill in the art to modify the device of Cochand to further include the liquid-flow sensor and the communication interface as taught by Marsh to include the system auto-refill so that a user never runs out of capsules.
Claim(s) 24, 25, 28, 32-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cochand et al. (US 9814263) in view of Collett et al. (US 2014/0060554A1).
Regarding Claim 24, 25, 28, 32-33, Cochand discloses all limitations of the invention except the sensor is or includes an optical liquid-level sensor configured to measure the reflectance of light at the atomizer, and the control component is configured to determine the volume of aerosol precursor composition based on the reflectance so measured. Cochand discloses controlling an aerosol composition at the atomizer. Cochand discloses the benefits of determining a volume of aerosol precursor composition at the atomizer in that it ensures that the aerosol has desired properties when being inhaled by a user, Far. 64} Cochand does not disclose the sensor is or includes an optical liquid-level sensor configured to measure the reflectance of light, and the control component is configured to determine the volume of aerosol precursor composition based on the reflectance so measured.
Collett discloses a similar device including the use of a flow control means having a valve to regulate (increase or decrease relative to a threshold control) the amount of aerosol precursor delivered to the aerosol producing means. It would have been obvious to one of skill in the art to modify the Cochand device to provide the flow control means of Collett since it was known in the art and further to allow specific control of the flow of precursor. Regarding claim 28, the use of particular types of valve, i.e. a single phase induction motor contolled vavle, such valves being known in the art would have been an obvious design choice modification. Regarding claims 32, 33, the use of a liquid flow sensor in conjunction with a liquid flow control valve would be obvious to the skilled artisan seeking enhanced control of the aerosol precursor, since the use of flow sensors are known in the art. Similarly, the display of any and/or all control parameters to the user would have been an obvious design choice to the skilled artisan seeking to permit exact control to the user.
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 21,23-29, 31-34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11937647. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims 21,23, 26-29, 31, 34 are broader in scope than the patented claims in that they do not require the provision of the flow control valve as required in claims 1-20 of the US 11937647.
Regarding instant claims 24-25, 28 and 32-33, the instant claims present the same invention including the flow control valve as claimed in US 11937647, differing only by not explicitly requiring a housing, such a housing being plainly obvious.
US 11937647 presents claim: (underlined portions represent limitations not required by the instant claim 21)
An aerosol delivery device comprising: a housing defining a reservoir configured to retain aerosol precursor composition; and contained within the housing, an atomizer controllable to activate and vaporize components of the aerosol precursor composition; a valve configured to control a flow of aerosol precursor composition from the reservoir to the atomizer; a sensor configured to measure a reflectance or temperature of the atomizer and generate a corresponding signal; and a control component configured to receive the corresponding signal and determine a volume of aerosol precursor composition at the atomizer, distinct from aerosol precursor composition in the reservoir, based on the reflectance or temperature so measured, the control component being configured to control the valve to decrease or increase a rate of the flow of aerosol precursor composition from the reservoir to the atomizer in response to the volume being respectively above or below a predetermined threshold volume.
The instant claim: (the underlined limitations representing a broader scope)
21. An aerosol delivery device comprising: a reservoir configured to retain an aerosol precursor composition; an atomizer controllable to activate and vaporize components of the aerosol precursor composition; a sensor comprising a temperature sensor configured to measure the temperature of the atomizer and generate a corresponding signal; and a control component configured to receive the corresponding signal and determine a volume of aerosol precursor composition at the atomizer, distinct from aerosol precursor composition in the reservoir, based on the temperature so measured, the control component being configured to control at least one functional element of the aerosol delivery device in response thereto.
Note claims 24-25 read directly on claim 1 of US11937647.
24. The aerosol delivery device of claim 21 further comprising a valve configured to control a flow of the aerosol precursor composition from the reservoir to the atomizer.
25. The aerosol delivery device of claim 24, wherein the control component is further configured to control the valve to decrease or increase a rate of the flow of the aerosol precursor composition in response to the volume being above or below a threshold value.
Note claim 28 reads on claim 4 of US11937647.
28. The aerosol delivery device of claim 24, wherein the valve is or includes a single-phase induction motor having a motor speed that is variable and proportional to the rate of the flow of aerosol precursor composition, and wherein the control component being configured to control the valve includes being configured to control the valve to respectively decrease or increase the motor speed and thereby the rate.
US 11937647 presents claim: (underlined portions represent limitations not required by the instant claim 21)
11. A control body coupled or coupleable with a cartridge to form an aerosol delivery device, the cartridge defining a reservoir configured to retain aerosol precursor composition, and being equipped with a atomizer controllable to activate and vaporize components of the aerosol precursor composition and a valve configured to control a flow of aerosol precursor composition from the reservoir to the atomizer, the control body comprising: a housing; and within the housing, a sensor configured to measure a reflectance or temperature of the atomizer and generate a corresponding signal; and a control component configured to receive the corresponding signal and determine a volume of aerosol precursor composition at the atomizer, distinct from aerosol precursor composition in the reservoir, based on the reflectance or temperature so measured, the control component being configured to control the valve to decrease or increase a rate of the flow of aerosol precursor composition from the reservoir to the atomizer in response to the volume being respectively above or below a predetermined threshold volume.
The instant claim: (the underlined limitations representing a broader scope)
29. A control body coupled or coupleable with a cartridge to form an aerosol delivery device, the cartridge defining a reservoir configured to retain an aerosol precursor composition, and being equipped with a atomizer controllable to activate and vaporize components of the aerosol precursor composition, the control body comprising: a housing; and within the housing, a sensor comprising a temperature sensor configured to measure the temperature of the atomizer and generate a corresponding signal; and a control component configured to receive the corresponding signal and determine a volume of aerosol precursor composition at the atomizer, distinct from aerosol precursor composition in the reservoir, based on the temperature so measured, the control component being configured to control at least one functional element of the aerosol delivery device in response thereto.
Note claims 32-33 read directly on claim 11 of US11937647.
32. The control body of claim 29, wherein the control component is further configured to control a valve to decrease or increase a rate of the flow of the aerosol precursor composition from the reservoir to the atomizer in response to the volume being above or below a threshold value.
33. The control body of claim 29, further comprising: a liquid-flow sensor configured to measure the rate of the flow of aerosol precursor composition to the atomizer; and a display controllable to present the rate so measured.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOR S CAMPBELL whose telephone number is (571)272-4776. The examiner can normally be reached M,W-F 6:30-10:30, 12-4.
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/THOR S CAMPBELL/
Primary Examiner
Art Unit 3761
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