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 .
Election/Restrictions
Claims 2-4 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 02/14/2026. Claims 1 and 5-8 are examined herein.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 51, shown in Fig. 2.
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 1 and 5-8 are objected to because of the following informalities:
Claim 1 appears to contain a typo and should recite “the second back plate comprises a plurality of [[a]] second back plate holes” for proper grammar;
Claim 5 appears to contain two instances of the same typo at l. 9-11 and should recite “in communication with” in each instance for proper grammar;
Claims 6-8 each appear to contain a typo and should each recite “The electronic cigarette described as in claim” for proper grammar.
Claim 7 appears to contain two typos and should recite “a plurality of [[a]] third back plate holes” and “a plurality of [[a]] fourth back plate holes” for proper grammar.
Appropriate correction is required.
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)(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.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tie (CN 213403421 U, English translation provided herewith).
Tie discloses a microphone with a MEMS chip for converting a sound signal into an electrical signal in an electronic device (the microphone reading on a “MEMS sensor”) [n0001-2, n0006].
The microphone includes the MEMS chip 2 (“substrate”) defining an interior space (“back cavity”) within the structure of the MEMS chip 2 (Figs. 1-2, [n0033]; compare with Applicant’s Fig. 1 showing substrate 21 and back cavity 20);
The microphone includes a pair of back plates 4, 5 (“first back plate assembly”) and a diaphragm 3 (“diaphragm”, together a “capacitive system” with the back plates 4, 5) opposing them ([n0033-34], Figs. 1-2);
The back plates 4, 5 are a first back electrode plate 4 (“first back plate”) and an additional backplate 5 (“second back plate”) which are spaced apart as shown in Figs. 1-2 [n0033-34];
The first back electrode plate 4 has a plurality of sound holes 41 (“first back plate holes”) and the additional backplate 5 has a plurality of additional sound holes 51 (“second back plate holes”) which are staggered from one another in a vibration direction of the diaphragm 3 ([n0033-35, n0038], Figs. 1-2; compare with Applicant’s Fig. 1 showing holes 3110, 3120 staggered in the same direction relative to diaphragm 32).
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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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 5-8 are rejected under 35 U.S.C. 103 as being unpatentable over Tie (CN 213403421 U) as applied to claim 1, in view of Bowen (US 2019/0159519 A1).
Regarding claim 5, Tie discloses that the MEMS microphone may be included in an electronic device [n0002, n0016, n0045], but fails to specifically disclose “An electronic cigarette, comprising, a housing with a smoking port passing through an upper end thereof, an atomizer received in the housing and spaced apart from the smoking port, an e-liquid chamber located between the atomizer and the smoking port, a first receiving space communicating with the smoking port, and an MEMS air flow sensor located in the first receiving space, wherein the MEMS air flow sensor comprises a printed circuit board, a frame connected with the printed circuit board to form a second receiving space, the MEMS sensor as described in claim 1 is fixed with the printed circuit board, the frame comprises a first through hole in communicating with the first receiving space and the second receiving space, a second through hole is formed in the printed circuit board and in communicating with the back cavity and the outside.”
Bowen is directed to puff sensing and power circuitry for vaporizer devices (Title), which is in the same field of endeavor as the claimed “electronic cigarette”.
The device 100 (“electronic cigarette”) includes a device body 101 with a housing (“housing”) and a mouthpiece 144 with an outlet 156 (“smoking port”) at an upper end ([0053, 0063], Figs. 1D-E);
The device 100 includes a heater 118 (“atomizer”) which may be located in the device body 101 [0054] and is therefore “spaced apart” from the outlet 156 as claimed;
The device includes a cartridge 114 with a reservoir 120 (“e-liquid chamber”) holding a liquid vaporizable material [0052], which is “located between” the heater 118 of the device body 101 and the outlet 156, as shown in Figs. 1B and 1E;
As shown in Figs. 6-8, the device 100 has an internal space (“first receiving space”) containing a pressure sensor 604 and other components (together a “MEMS air flow sensor”), and the pressure sensor 604 may be a MEMS pressure sensor [0071-72];
The device includes a circuit board 600 (“printed circuit board”), an internal skeleton 712 (“frame”) which defines an interior space (“second receiving space”) containing the circuit board 600 as shown in Fig. 8, and the pressure sensor 604 ([0072, 0084], Figs. 6-8). The device 100 includes a channel 310 for communicating the sensor 604 with external air [0073], and the device 100 generally includes an airflow path connecting outside air to the pressure sensor and the mouthpiece 144 [0009]. Bowen fails to specifically disclose forming a “first through hole” in the “frame” and a “second through hole…in the printed circuit board” as claimed, but in view of the disclosures regarding the channel 310 and airflow path being in communication with the sensor 604, it would be an obvious rearrangement of parts to form the airflow path through the skeleton 712 and the circuit board 600 (which are immediately adjacent to and in fluid communication with the sensor 604 as shown in Figs. 6-8), which reads on the claim language. See MPEP 2144.04(VI)(C); see also In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950); see also In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
Bowen discloses the MEMS pressure sensor 604, but fails to specifically disclose the limitations of claim 1 and thus fails to disclose “the MEMS sensor as described in claim 1 is fixed with the printed circuit board”. However, Tie discloses using its MEMS microphone in an electronic device as set forth above, and thus it would be obvious to select Tie’s MEMS microphone as Bowen’s MEMS pressure sensor 604, which reads on the claim language.
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Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Tie by using its MEMS microphone in lieu of Bowen’s sensor 604, because Tie and Bowen are both in the same field of endeavor as the claimed invention, Tie teaches using its MEMS microphone in electronic devices and Bowen teaches that the pressure sensor 604 may be a MEMS sensor, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Regarding claim 6, Tie discloses a first gap between the first back electrode plate 4 and the additional backplate 5 [n0037], Figs. 1-2). Tie fails to specifically disclose that the first gap is “smaller than 1 µm” as claimed. However, Tie discloses that the first gap, a second gap between the plate 4 and diaphragm 3, and a foreign object entering the gaps are all similarly sized [n0017, n0035-38], and thus one of ordinary skill in the art would expect the first gap to be on the order of millimeters or microns. Furthermore, Tie discloses that the first and second gaps are sized appropriately to prevent a foreign object from reaching the diaphragm 3, which improves the microphone’s stability [n0003, n0037-39]. Therefore, one of ordinary skill in the art would recognize that the size of the first gap is a result-effective variable regarding the microphone stability, and would optimize the size of the gap to be within the claimed range. See MPEP 2144.05(II); see also In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding claim 7, Tie further discloses a second back electrode plate 6 (“second back plate assembly” and “third back plate”) which is located on the opposite side of the diaphragm 3 as the pair of plates 4, 5 ([n0036], Figs. 1-2). The second back electrode plate 6 includes a plurality of second sound holes 61 (“third back plate holes”) ([n0036], Figs. 1-2). Tie fails to explicitly disclose a “fourth back plate” with a plurality of “fourth back plate holes” as claimed. However, it would be a mere duplication of parts to provide a second additional backplate 5’ (“fourth back plate”) with second additional sound holes 51’ (“fourth back plate holes”) adjacent to the second back electrode plate 6, which is therefore obvious in view of Tie. See MPEP 2144.04(VI)(B); see also In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). Such plates 5’, 6 would be “spaced apart” and such holes 51’, 6 would be “staggered with each other in the vibration direction of the diaphragm” in the same manner as the pair of plates 4, 5 and sound holes 41, 51 discussed above per claim 1.
Regarding claim 8, it would be obvious to provide the plates 5’, 6 spaced apart by a distance “smaller than 1 µm” as claimed, for the same reasons as set forth above in the discussion of claim 6 with regard to the plates 4, 5.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL PATRICK MULLEN whose telephone number is (571)272-2373. The examiner can normally be reached M-F 10-7 ET.
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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.
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/MICHAEL PATRICK MULLEN/Examiner, Art Unit 1747
/SEDEF E PAQUETTE/Primary Examiner, Art Unit 1749
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