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
Applicant’s election of group I, claims 22-38 in the reply filed on 4/2/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claims 39-41 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 4/2/2026.
Information Disclosure Statement
The information disclosure statement filed 6/7/2024 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because the inventor name is not listed for issued U.S. Patent No. 10,500,600. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 27 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 27, the claim recites the limitation “wherein the at least one motion sensor is configured to provide time-related motion sensor data on a first time scale.” It is unclear what the first time scale is, and how it interacts with the motion sensor data being provided. Does the first time scale mean that the data obtained by the motion sensor is compressed or lengthened relative to the amount of time over which the data was received, does it refer to the time period that it takes to transmit the data to the motion sensor controller, or does it refer to the an observation period of which the data was obtained by the motion sensor? Does the first time scale have a unit of time, such as seconds, associated with it, or is it merely a relative term? The claim is therefore indefinite.
The claim also recites “wherein the motion sensor controller of the motion detection circuity is configured to provide time-related gesture data on a second time scale larger than the first time scale.” It is unclear what the second time scale is, and how it interacts with the gesture data being provided. Does the second time scale mean that the gesture data is compressed or lengthened relative to the amount of time over which the data was received, does it refer to the time period that it takes to transmit the data, or does it refer to the an observation period of which the data was obtained by the motion sensor controller? Does the second time scale have a unit of time, such as seconds, associated with it, or is it merely a relative term? The claim is therefore indefinite.
For the purposes of this Office action, the claim will not be considered to limit claim 22 since all of the limitations of the instant claim are indefinite and are at a level of generality insufficient to ascertain the thrust of the claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 22-38 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Regarding claim 22, the claim is directed to a machine, which is a statutory category of invention. However, it is directed to the abstract idea of a mental process since the claim is directed to observing data, analyzing the data, and then controlling a device in a generic way based on that data. See MPEP § 2106.04(a)(2) III. The abstract idea is not integrated into a practical application since controlling the aerosol generating device based on some trigger is well known and does not constitute significant extra-solution activity. See MPEP § 2106.04(d) and MPEP § 2106.05(g).
Finally, the claim does not recite additional elements that amount to significantly more than the judicial exception. The claim recites the additional elements of an aerosol generating device comprising motion detection circuitry and a motion sensor controller that pass data to device control circuitry that controls device operation based on the received data. For instance, Dickens (US 2018/0184711) teaches an aerosol delivery device (abstract) having a motion sensor that is arranged to detect motion of the device and to output corresponding motion detection signals to control circuitry, which determines whether a tapping event has occurred and control the device based in part on that occurrence [0008]. The motion sensor is an accelerometer [0032] that outputs the motion detection signals [0023], indicating that the accelerometer also has a motion sensor controller to produce that output. Fu (US 2019/0364968) teaches a vaporizer body (abstract) that has an accelerometer that detects user handling of the vaporizer body [0075] that communicates with a controller [0073], which is considered to meet the claim limitation of device control circuitry. It is evident that the accelerometer has both motion detection circuitry and a motion sensor controller since it both determines device motion and communicates the data to the controller. The controller interprets the data from the accelerometer as user commands and operates the device accordingly [0075]. Finally, Harden (US 2022/0256934) teaches an aerosol delivery device having input means in the form of a movement sensor [0071], which is considered to meet the claim limitation of a motion sensor, that outputs signals to a controller [0070], which is considered to meet the claim limitation of a device processor. A movement detection signal is generated by the movement sensor and is subsequently received by the controller [0174], indicating that the movement sensor must has a motion sensor processor that turns the data received from the accelerometer into a signal that can be received by the controller. The device operation is controlled based on the movement detection signal [0174].
Regarding claims 23-38, the claims do not add any additional limitations that would affect the analysis set forth above with respect to claim 22.
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.
Claims 22-38 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Harden (US 2022/0256934).
Regarding claims 22 and 27, Harden discloses an aerosol delivery device having input means in the form of a movement sensor [0071], which is considered to meet the claim limitation of a motion sensor, that outputs signals to a controller [0070], which is considered to meet the claim limitation of a device processor. A movement detection signal is generated by the movement sensor and is subsequently received by the controller [0174], indicating that the movement sensor must has a motion sensor processor that turns the data received from the accelerometer into a signal that can be received by the controller. The device operation is controlled based on the movement detection signal [0174]. The movement of the device is an active movement of the device by a smoker [0072], which is considered to meet the claim limitation of a gesture.
Regarding claim 23, Harden discloses that the device movement is the device being shaken [0072], which is considered to meet the claim limitation of a predefined gesture event being performed on the aerosol generating device.
Regarding claim 24, Harden discloses that the trigger input is a smoker shaking the device [0072], which is considered to meet the claim limitation of a predefined gesture event being performed on the aerosol generating device, and that the trigger input is then signaled to the controller using a trigger signal [0070], which is considered to meet the claim limitation of signaling detection.
Regarding claim 25, Harden discloses that the device movement is the device being shaken [0072], which is considered to meet the claim limitation of a motion. The movement sensor detects the trigger input and then outputs the trigger signal to the controller based upon the specific trigger input received [0070], indicating that the trigger signal must be computed based on the data received regarding the specific trigger input.
Regarding claim 26, Harden discloses the movement sensor detects the trigger input and then outputs the trigger signal to the controller based upon the specific trigger input received [0070], which is considered to meet the claim limitation of motion sensor data descriptive of the gesture performed.
Regarding claim 28, Harden discloses that the device movement is the device being shaken [0072], which is considered to meet the claim limitation of a predefined gesture event following a pattern. The movement sensor detects the trigger input and then outputs the trigger signal to the controller based upon the specific trigger input received [0070], which is considered to meet the claim limitation of providing gesture data indicative of the at least one gesture event to the device control circuitry.
Regarding claim 29, Harden discloses that the predetermined input is in the form of a pattern of taps [0180], which is considered to indicate that the taps must be in sequence. The data provided to the controller must reflect this sequence since the controller receives signals based on the trigger input received by the movement sensor.
Regarding claim 30, Harden discloses that the trigger input is a shake [0072].
Regarding claim 31, Harden discloses that the trigger input is based in part on a time period interval between successive taps [0072], which is considered to meet the claim limitation of time information related to the gesture event.
Regarding claim 32, Harden discloses that the movement sensor detects a tap and generates the signal based on that tap [0072], which is considered to meet the claim limitation of determining gesture data based on one or more gesture data elements.
Regarding claim 33, Harden discloses that trigger input is a series of taps that are separated by an associated time period [0072], which is considered to meet the claim limitation of one or more gesture data element and based on a time period.
Regarding claim 34, the time interval between successive taps of Harden is considered to meet the claim limitation of a time period between two consecutive gesture data elements.
Regarding claim 35, Harden discloses that the trigger input is a shake [0072], which is considered to meet the claim limitation of a type of one or more gesture data elements.
Regarding claim 36, Harden discloses that the trigger input is determined based on detecting a behavior conventionally associated with smoking [0073], which must include a comparison step since the device would otherwise be unable to determine whether the actual movement of the device corresponded to the conventional smoking behavior.
Regarding claim 37, Harden discloses that the trigger input is a shake [0072], which is considered to be a determined gesture, that is then used to control the device [0070].
Regarding claim 38, Harden discloses that the trigger input causes the initiation of a smoking session [0065], which is considered to be an alteration of an operational mode of the aerosol generating device.
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 22-28, 30, 32 and 35-38 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16-34 of copending Application No. 18/003,015 (hereafter referred to as Oliana ‘015). Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claims 22, 24, 26-28, 32 and 35-38, Oliana ‘015 claims an aerosol generating device comprising an accelerometer that provides a signal (claim 16), indicating that the accelerometer must have an additional motion sensor controller to convert the data from the accelerometer into signal form. The signal is sent to a controller, which is considered to meet the claim limitation of device control circuitry including one or more device processors, to determine if a detected gesture is indicative of a usage session progress query, and the controller controls the device to emit a progress indication if the gesture is indicative of a usage session progress query (claim 16).
Regarding claim 23, the usage session progress query gesture must be predefined since the device of Oliana ‘015 could not compare the observed gesture to a gesture that was not predefined.
Regarding claim 25, Oliana ‘015 claims that the accelerometer of the device is configured to detect movement (claim 16), which is considered to meet the claim limitation of a motion. It is evident that the accelerometer computes data to send the signal to the controller since an appropriate signal could not be sent without some computation.
Regarding claim 30, the motion of Oliana ‘015 is considered to be a predefined translational movement along one or more spatial directions since movement by definition must be in a spatial direction.
Claims 29, 31 and 33-34 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16-34 of copending Application No. 18/003,015 (hereafter referred to as Oliana ‘015) in view of Harden (US 2022/0256934).
Regarding claim 29, Oliana ‘015 claims all the claim limitations as set forth above. Oliana ‘015 does not explicitly claim the gesture being a sequence of plural gesture events.
Harden teaches an aerosol delivery device having a movement sensor that detects device movement that correspond to different preselected modes of operation by forming trigger inputs [0071]. In one embodiment, the predetermined input is in the form of a pattern of taps [0180], which is considered to indicate that the taps must be in sequence. The data provided to the controller must reflect this sequence since the controller receives signals based on the trigger input received by the movement sensor.
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the gesture of Oliana ‘015 with the plural taps of Harden. One would have been motivated to do so since Harden teaches a suitable gesture for triggering an aerosol delivery device mode of operation. Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious. See MPEP § 2143, D.
Regarding claims 31 and 33-34, Oliana ‘015 claims all the claim limitations as set forth above. Oliana ‘015 does not explicitly claim the gesture being a sequence of plural gesture events.
Harden teaches an aerosol delivery device having a movement sensor that detects device movement that correspond to different preselected modes of operation by forming trigger inputs [0071]. In one embodiment, the predetermined input is in the form of a pattern of taps [0180], which is considered to indicate that the taps must be in sequence. The data provided to the controller must reflect this sequence since the controller receives signals based on the trigger input received by the movement sensor. The trigger input is based in part on a time period interval between successive taps [0072], which is considered to meet the claim limitation of time information related to the gesture event.
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the gesture of Oliana ‘015 with the plural taps of Harden. One would have been motivated to do so since Harden teaches a suitable gesture for triggering an aerosol delivery device mode of operation. Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious. See MPEP § 2143, D.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 22-30 and 35-38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 12,408,706 (hereafter referred to as Oliana ‘706) in view of Harden (US 2022/0256934).
Regarding claims 22, 27-28, and 36-37, Oliana ‘706 claims an aerosol generating device comprising a motion detection unit that identifies a first gesture, which is considered to meet the claim limitation of a gesture, and a controller. The controller operates the device based on detection of the first gesture (claim 1). Oliana ‘706 does not explicitly claim the motion detection unit communicating with the controller by a signal.
Harden teaches an aerosol delivery device having input means in the form of a movement sensor [0071] that outputs signals to a controller [0070]. A movement detection signal is generated by the movement sensor and is subsequently received by the controller [0174], indicating that the movement sensor must has a motion sensor processor that turns the data received from the accelerometer into a signal that can be received by the controller. The device operation is controlled based on the movement detection signal [0174]. The movement of the device is an active movement of the device by a smoker [0072], which is considered to meet the claim limitation of a gesture.
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the motion detection unit and controller of Oliana ‘706 with the communication of Harden. One would have been motivated to do so since Harden teaches a suitable communication system for gesture data in an aerosol delivery device.
Regarding claims 23 and 24, it is evident that the first gesture of Oliana ‘706 must be predetermined since the device would otherwise be unable to recognize the first gesture.
Regarding claims 25 and 26, it is evident that the motion detection unit of Oliana ‘706 must compute the raw data since it would otherwise be unable to communicate a signal.
Regarding claim 29, Oliana ‘706 claims the motion detector detects a second gesture following the detection of the first gesture (claim 1).
Regarding claim 30, the motion of Oliana ‘706 must be a predefined translational movement since that covers any predefined movement in any direction falls within that limitation.
Regarding claim 35, Oliana ‘706 claims that the gesture is tapping (claim 5), which is considered to be a type of gesture data element.
Regarding claim 38, Oliana ‘706 claims the device outputting information to a used based on the first gesture (claim 1), which is considered to meet the claim limitation of activating a user interface.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUSSELL E SPARKS whose telephone number is (571)270-1426. The examiner can normally be reached Monday-Friday, 9:00 am-5 pm.
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/RUSSELL E SPARKS/ Primary Examiner, Art Unit 1755
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