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 .
Response to Amendment
The amendments entered on 8/27/2026 have been accepted. Claims 1, 4, 9 are amended. Claim 3 is canceled. Claims 1-2, 4-10 are pending, and claims 9-10 are withdrawn from consideration.
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 1-2, 4-7 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) a method comprising “calculating a reference suction ability based on lung capacity information received from the user or an external device, determining a target suction ability of a user based on the inhalation information” and “determining a status of the user by evaluating the target suction ability based on a reference suction ability preset in the electronic device, and “calculating the reference suction ability based on at least one of a type of heater used by the additional device, a characteristic of an aerosol generated by the additional device, or a type of cigarette used in the additional device”.
Claim 1 is rejected based on the following analysis:
Step 2A, Prong One: Identify the law of nature/natural phenomenon/abstract ideas.
The examiner finds that each of the quoted sections of claim 1 (“calculating”, “determining”, “determining”, and “calculating”) recites a mental process. If a claim limitation, under its broadest reasonable interpretation covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Determining a target suction ability and determining a status of the user are both evaluations, and calculating the reference suction ability is mathematical operations.
Step 2A, Prong Two: Has the abstract idea been integrated into a particular practical application?
Lines 5-6 of claim 1 recite the limitation of “receiving… inhalation information generated based on one or more sensors in the additional device”. This is not considered to be an integration of the abstract idea into a particular practical application. This step is essentially data gathering to be used in the abstract idea which is insignificant pre-solution activity. See MPEP 2106.05(g). See CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011), wherein the step of obtaining information about transactions using the Internet to verify credit card transactions was considered to be mere data gathering with insignificant extra-solution activity. The limitation of lines 7-8 “receiving, from at least one biometric sensor of the additional device, biometric information of the user”, is considered insignificant pre-solution activity for the same reason.
While lines 12-17 do include the limitations of “generating a notification message based on the status, wherein the notification message provides guidance to the user to achieve the reference suction ability”, “outputting the notification message”, and “based on the status being less than or equal to a threshold, outputting an additional notification to the user, wherein the additional notification includes the target suction ability and the biometric information”, these limitations are not considered to be an integration of the exception into a practical application of the exception. "Another consideration when determining whether a claim integrates the judicial exception into a practical application in Step 2A Prong Two or recites significantly more in Step 2B is whether the additional elements add more than insignificant extra-solution activity to the judicial exception". MPEP 2106.05(g). An example of "extra-solution activity" can be understood as activities incidental to the primary process or product that are merely a nominal or tangential addition to the claim. An example of a post-solution activity is "an element that is not integrated into the claim as a whole, e.g., a printer that is used to output a report of fraudulent transactions, which is recited in a claim to a computer programmed to analyze and manipulate information about credit card transactions in order to detect whether the transactions were fraudulent" MPEP 2106.05(g). The claims in this case are an example of "extra-solution activity" which are insignificant post-solution steps. The addition of the limitations of generating and outputting the notification message are merely post-solution activities that are not integrated to the claim as a whole, in the same way that the printer merely outputs the result of the fraudulent transactions.
As detailed in MPEP 2106.05(g), the addition of insignificant extra-solution activity does not amount to an inventive concept, particularly when the activity is well-understood or conventional. Parker v. Flook, 437 U.S. 584, 588-89, 198 USPQ 193, 196 (1978). In Flook, the Court reasoned that "[t]he notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula". 437 U.S. at 590; 198 USPQ at 197; Id. (holding that step of adjusting an alarm limit variable to a figure computed according to a mathematical formula was "post-solution activity"). In a similar way, the instant applications limitations tied to generating and outputting a notification message based upon the evaluations of determining target suction ability and determining the status of the user by evaluating the target suction ability is considered post-solution activity which does not transform this unpatentable principle into a patentable process.
Applicant argues that example 40 shows that the instant limitations should be patent eligible because of the similarity of the claims. The Examiner respectfully disagrees. Unlike in example 40, the claim step of “outputting an additional notification to the user” does not appear to be a specific improvement over prior systems. Applicant seems to argue that “conditional display of user information,” so only performing additional outputting if the status is less than or equal to a threshold value, is an improvement like in Example 40, “collecting additional traffic data relating to the network traffic when the collected traffic data is greater than the predefined threshold, the additional traffic data comprising Netflow protocol data,” but it is not apparent that this is any improvement and instead it is just outputting an additional value. Applicant argues that the outputting by a display, but yet no display is claimed.
Further as claimed- the outputting in both the claim preamble and claim body may be read as a mental process. What is outputted does not seem particular as is just a target value and biometric information. The outputting as claimed is just providing/outputting more data. The claims do not recite any specific display method for this data, such that this “outputting” may be construed as a mental process. And therefore, can be read as insignificant extra-solution activity. See MPEP 2106.05 (g).
Step 2B: Does the claim recite any elements which are significantly more than the abstract idea?
No. As noted above, the extra elements in the claim (“receiving”, “generating”, and “outputting”) do not lend itself to being significantly more. The claims do not include additional elements which are sufficient to amount to significantly more than the judicial exception because the additional elements are considered to be merely adding an insignificant extra-solution activity to the judicial exception MPEP 2106.05(g), or generally linking the use of the judicial exception to a particular technological environment or field of use 2106.05(h). And additionally, it is noted that receiving data and outputting notification messages are well-understood, routine, and conventional within the art. See US2014/0352690A1 for example, wherein there is an inhalation device with a feedback system [title], where the controller receives signals from the sensing device [0029-0030], and where a notification may be generated/output depending on inhalation data [0023, 0030]. See 103 rejections below for additional details on how these limitations are well-understood, routine, and conventional within the art.
Regarding claim 2, this claim is directed towards specifying the inhalation information which is still a part of the data gathering step under Step 2A prong two, such that this limitation does not rise to significantly more than the abstract idea.
Regarding claim 4, this claim specifies that the second “determining” step of claim 1 involves comparing a reference suction intensity/time with that of a target intensity/time. This is still a part of the “determining” step tied to an abstract idea, and as this is still linked to making the determination/mental processing this does not amount to significantly more.
Regarding claim 5, this claim is directed towards specifying the notification message which is still a part of the “generating” and “outputting” steps of Step 2A prong two, and this limitation does not provide significantly more than the abstract idea.
Regarding claim 6, this claim recites the additional steps of “storing” the target suction ability and providing a history of suction ability of the user. This does not amount to significantly more than the judicial exception because the additional elements are considered to be merely adding an insignificant extra-solution activity to the judicial exception MPEP 2106.05(g), or generally linking the use of the judicial exception to a particular technological environment or field of use 2106.05(h). And additionally, these limitations are well-understood, routine, and conventional in the art, see US2014/0352690A1, for example, the values for several inhalation parameters may be stored [0061] and the user may be provided with feedback regarding the current and previous stored values [0061-0066].
Regarding claim 7, the claim further specifies what the electronic device and the additional device are (mobile communication terminal and electronic cigarette, respectively). This does not change the data “receiving” step from claim 1, such that this still amounts to essentially a data-gathering step between devices which is insignificant pre-solution activity. This further specification also does not amount to significantly more than the abstract idea, as this is generally linking the use of the judicial exception to a particular technological environment or field of use 2106.05(h), and it is well-understood, routine, and conventional within the art for the mobile communication terminal and an electronic cigarette to communicate in this fashion. See Kersey US2021/0259316A1, Fig. 6 and [0089-0096] detail the feedback communications between an electronic cigarette and a mobile terminal (such as a smartphone or tablet).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kersey (US2021/0259316A1, of record), or in the alternate, claims 1-2 and 4-7 are rejected under 35 U.S.C. 103 as being unpatentable over Kersey (US2021/0259316A1, of record) in view of Suganuma (JP2020068739A, of record).
Regarding claim 1, Kersey teaches a method of outputting a status of a suction ability performed by an electronic device (the electronic vapor provision system may comprise two components, as in Fig. 6, including an e-cigarette “10” and a mobile phone or similar device “100” which communicates with the e-cigarette [0089]. The electronic device may be considered the phone “100”, wherein “feedback is provided in relation to one or more predefined inhalation airflow profiles” [0045], such that this is considered to be outputting of a status of a suction ability),
calculating the reference suction ability preset based on lung capacity information of the user received from the user or an external device (it is noted that lung capacity information is given its broadest reasonable interpretation. The lung capacity information may be considered to be any of the flow speed, volume of air, duration, etc., [0056-0061]. This information may be utilized to train a profile akin to calculate the reference preset [0057], and as the user may utilize the electronic cigarette “10” to measure this data via the airflow sensors [0056], it would be considered that this lung capacity information may come from the user via the additional device),
Receiving from an additional device inhalation information generated based on one or more sensors in the additional device (the additional device is considered to be the e-cigarette “10” [Fig. 5-6, 0089]. The e-cigarette communicates with the phone “100” as to the data from the cigarette and compares inhalation profiles to preset profiles [0089-0097]. The e-cigarette may include sensors such as an airflow sensor “215” [0034, 0056], wherein inhalation information may include air flow speed, cross-sectional area of the channel, volume of air, etc. [0056]),
Receiving, from at least one biometric sensor of the additional device, biometric information of the user (biometric sensor and biometric information are given their broadest reasonable interpretation. A suction ability is tied to a user, as the instant application repeatedly states, such that a user’s unique inhalation or airflow may be considered to be biometric information under the broadest reasonable interpretation thereof. It is not required for the biometric information to be separate from the target suction ability for example, and the claim does not specify or limit what the lung capacity information or biometric information is to be. As such, the “lung capacity information” may be considered to be the airflow speed for example, and the “biometric information” may be considered to either also be considered the airflow speed, or volume flow, duration, etc [0056-0061], and the sensor may also be considered a biometric sensor [0056]. It being noted that it is not specifically required that these are separate sensors for example),
Determining a target suction ability of a user based on the inhalation information (the electronic vapor provision system (EVPS) by means of the sensors of the e-cigarette estimates the current volume of air being inhaled, for instance for successive measurement periods or sample periods of the measurements means [0056]. Other airflow parameters may also be utilized [0056]),
Determining a status of the user by evaluating the target suction ability based on a reference suction ability preset in the electronic device (the inhalation parameters may be used to compare current usage with an existing profile [0057]. The inhalation performed by the user “may thus be compared to the profile description, whether this is by tracing inhalation with respect to a time history or curve, or comparing the difference between a target profile position on an inhalation intensity/time plot and the user’s current position, either after an inhalation is complete, or as it progresses” [0049]),
Generating a notification message based on the status, wherein the notification message provides guidance to the user to achieve the reference suction ability, and outputting the notification message (based on the user’s deviation from the intended inhalation profile, feedback is provided to the user responsive to the difference between a measured airflow parameter and inhalation air flow profile [0061-0062]. The feedback may be real time or after inhalation is complete [0064], and the feedback provided may be in a variety of different manners including haptic, sound, etc. [0065-0075]. This clearly constitutes the generating of a message for providing guidance to the user and the outputting of the message. As this feedback is responsive to the inhalation information acquired and the determination made regarding target suction ability and an evaluation comparing the current status to that of the reference preset, these limitations are clearly taught by Kersey),
Based on the status being less than or equal to a threshold, outputting an additional notification to the user, wherein the additional notification includes the target suction ability and the biometric information (Kersey notes that the feedback is provided to the user based upon deviation from the intended inhalation profile [0061-0062], such that this would be considered to be the status being different from a threshold to determine this factor. The feedback may be in real time and/or after inhalation is complete [0064], such that the feedback may occur continuously such that there would naturally be additional notifications generated according to this criterion. In other words, the real-time notification may be considered the base generation of a notification message, and the notification after inhalation is complete may be considered to be the “additional” notification to the user. And as stated previously, the target suction ability and the biometric information may be considered to be the same or different variations upon related inhalation characteristics. The biometric information may be considered to be any or all of the related values such as airflow speed, volume flow, duration, etc., [0056-0061], as these aspects would naturally be tied to bio human characteristics.
Wherein the calculating a reference suction ability comprises calculating the reference suction ability based on at least one of a type of heater used by the additional device, a characteristic of an aerosol generated by the additional device, or a type of cigarette used in the additional device (The air flow speed or volume measurements would be of the aerosol generated, such that this would be considered a characteristic of the aerosol generated by the additional device, so that this could be the suction amount, speed of inhalation, etc. Also, it is noted that Kersey’s profiles may be set according to a type of vapor being provided [0052], which would be dependent upon the type of cigarette used in the additional device).
In the alternate regarding receiving biometric information from at least one biometric sensor and outputting the biometric information, it is well-understood in the art that a variety of biometric information may be utilized in electronic-cigarettes to provide additional analysis for the user. Suganuma, for example, teaches a method of measuring a health condition which is performed by the personal health condition evaluation system “S” [0014]. The method involves measuring puff data from a suction device and outputting comparisons to stored data [0043-0044]. A variety of biometric information can be obtained and then output, including pulse, heartbeat, sweat rate, glucose, etc. [0017]. The data is obtained from a sensor such as a pulse sensor [0028]. The data is transferred and may notify the health state evaluation [0035, 0049, 0030]. One of ordinary skill in the art would have found it obvious to include a biometric sensor to collect biometric information to output to the user as suggested by Suganuma. One would have been motivated so as to collect and provide the health state evaluation data to the user [0035, 0049] and to allow for easy frequent measurements of the biological information [0006-0007].
Regarding claim 2, Kersey teaches or modified Kersey suggests a method wherein the inhalation information comprises at least one of an average flow rate of airflow according to inhalation by the user, a cross-sectional area of a channel through which airflow passes, and a duration of resistance to draw (The airflow measurement may detect air flow speed, cross-sectional area of a channel, volume of air, [0056], and may relate to duration as well [0061], wherein this parameter is what may be compared to a reference preset [0057]).
Regarding claim 4, Kersey teaches or modified Kersey suggests a method wherein the method comprises determining the status of the user by comparing a reference suction intensity and a reference suction time of the reference suction ability with a target suction intensity and target suction time of the target suction ability (Kersey teaches that inhalation parameters may be obtained such as the air flow speed, akin to a suction intensity, and a duration [0056-0061]. Kersey teaches that these values may be obtained and that they may be compared to a reference preset [0057]. Therefore, the preset references of the air flow speed and duration may be considered that target intensity/duration, while the measured inhalation values which are compared to the preset ones may be considered the reference intensity/time. And as Kersey teaches comparing the inhalation with the preset conditions so as to notify a user to “correct or adapt their inhalation action” [0063], Kersey clearly teaches/suggests all limitations of this claim).
Regarding claim 5, Kersey teaches or modified Kersey suggests a method wherein the notification message indicates to adjust at least one of a suction intensity or time (the method includes providing feedback to the user responsive to the difference between the measured airflow parameter and the inhalation airflow profile [0062]. This allows for the user to be aware of when their inhalation action differs, and enables a user to “correct or adapt their inhalation action” [0063], such that this is considered to be a notification message to adjust a suction intensity/time).
Regarding claim 6, Kersey teaches or modified Kersey suggests a method comprising storing the target suction ability and providing the user with a history of suction ability of the user based on the target suction ability (Kersey teaches that a profile of the users suction ability may be set or loaded [0047-0048], and the profiles may be stored [0092]. The user may access a puff history [0082], wherein the feedback provided is based on comparisons between current and target suctions [0049, 0063], such that the method clearly comprises storing and providing the user with a history of the suction ability).
Regarding claim 7, Kersey teaches or modified Kersey suggests a method wherein the electronic device is a mobile communication terminal (as in Fig. 6, the electronic device may be considered a smartphone “100” which is considered a mobile communication terminal) and the additional device is an electronic cigarette (as in Fig. 6, the electronic device may communicate with an e-cigarette “10”).
Claims 1-2 and 4-7 are rejected under 35 U.S.C. 103 as being unpatentable over Suganuma (JP2020068739A, of record) in view of Kersey (US2021/0259316A1, of record).
Regarding claim 1, Suganuma teaches a method of outputting a status of a suction ability performed by an electronic device (Suganuma teaches a method of measuring a health condition which is performed by the personal health condition evaluation system “S” [0014]. The method involves measuring puff data from a suction device and outputting comparisons to stored data [0043-0044]. The system may comprise an aerosol supply device “1” which transmits data to an external device where the external device may be an arithmetic apparatus “20” [0015]. The arithmetic unit which receives data from the aerosol device may have a display “24” and maybe a mobile terminal “30” [0048-0051]. This arithmetic unit “20” may be considered the electronic device),
calculating the reference suction ability preset based on lung capacity information of the user received from the user or an external device (it is noted that lung capacity information is given its broadest reasonable interpretation. The lung capacity information may be considered to be a number of puffs, pressure (as measured by the pressure sensor), puff elapsed time, etc., [0038, 0047]. This information may be utilized to determine the health condition of the user dependent on this data compared to preset values [0043-0045], and as the user may utilize the electronic cigarette “1” to measure this data via the pressure sensors [0037], it would be considered that this lung capacity information may come from the user via the additional device),
Receiving from an additional device inhalation information generated based on one or more sensors in the additional device (the additional device is considered to be the aerosol supply device “1” [Fig. 1, 0043-0044]. The aerosol supply device includes biometric information detection unit such as a pulse sensor “6” and other biometric information [0015], as well as a pressure sensor “9” which is able to get the suction data such as suction amount [0044]. The information is sent from the aerosol device to the arithmetic device and stored [0044]),
receiving, from at least one biometric sensor of the additional device, biometric information of the user (A variety of biometric information can be obtained, including pulse, heartbeat, sweat rate, glucose, etc. [0017]. The data is obtained from a sensor such as a pulse sensor [0028], which is the biometric sensor),
Determining a target suction ability of a user based on the inhalation information (as noted above, the aerosol supply device may send data including suction amount data to the arithmetic device [0044]. This data may include the number of puffs, and the switching between a suction state and non-suction state such that this would include suction duration [0038-0047]),
Determining a status of the user by evaluating the target suction ability based on a reference suction ability preset in the electronic device (the system may determine a health condition of the user based on difference between biometric data and suction data between the user and those of data had during normal periods [0030-0033, 0043-0047]. The analysis unit “23” evaluates the health by comparing the related data in the memory to that of stored data [0044]),
Generating a notification message based on the status and outputting the notification message which provides guidance to the user to achieve the reference suction ability (the device “20” further includes a notification unit, display “24” that notifies that health state evaluation result data by the analysis unit “23” [0035, 0049] which is based on the comparisons of the data (see Fig. 7 for example, showing comparisons between puff rate/pulse rate in normal times and abnormalities). The notification to the user may be by the display, or vibration, or sound, etc [0050-0052]. The notification data may include suggestions of the time and method for sucking the device [0035]),
Wherein the calculating a reference suction ability comprises calculating the reference suction ability based on at least one of a type of heater used by the additional device, a characteristic of an aerosol generated by the additional device, or a type of cigarette used in the additional device (the calculating the reference suction ability may be based on number of puffs, pressure, time, etc. [0038, 0047]. These may each be considered to be characteristics of the aerosol generated, as they all deal with the generated aerosol. Additionally, Suganuma details that the type of aerosol substrate is determined such that it may suggest a type of aerosol substrate to use instead of another [0035], such that the type of substrate/cigarette would clearly influence the reference suction ability calculation).
Suganuma does not directly state that it outputs an additional notification including target suction ability based upon the status being less or equal to a threshold. However, these this type of comparison (a determined value compared to a threshold value) is common within the art. Kersey, for example, is similarly tied to a method for outputting a status of suction ability [0089, 0045]. Kersey tracks a user’s inhalation patterns based on number of puffs, pressure, etc. [0056-0061]. The user’s deviation from the intended inhalation profile is determined over time, and feedback is provided to the user responsive to the difference between a measured airflow parameter and inhalation air flow profile [0061-0062]. In other words, a comparison is made between the measured parameters and that of the intended parameters, and the user is notified if required [0061-0066]. In this manner, Kersey suggests outputting a notification if the determined value is less than the intended threshold.
One of ordinary skill in the art would have found it obvious to modify the method of Suganuma to have the conditions of Kersey. One would have been motivated so as to output specific feedback in response to determined differences between the measured and intended values [0061-0066]. And in having notifications as suggested by Kersey, modified Suganuma would be outputting an additional notification which would contain the target suction ability and biometric information, such as the number of puffs/pressure and the pulse data of the user.
Regarding claim 2, modified Suganuma suggests the inhalation information comprises at least one of the factors listed (Suganuma suggests that the pressure sensor 9 may be utilized to detect a suction state and non-suction states, and to determine the number of suction operations [0038]. And in addition to a puff number, a timer may be used for elapsed time [0047], such that it is considered that the inhalation information may include at least the duration of the suction according to Suganuma).
Regarding claim 4, modified Suganuma suggests a method wherein the method comprises determining the status of the user by comparing a reference suction intensity and a reference suction time of the reference suction ability with a target suction intensity and target suction time of the target suction ability (Suganuma teaches that inhalation parameters may be obtained such as a number of puffs taken, the switching in status between suction and non-suction stat, and thus suction duration [0038-0047]. Suganuma teaches that health condition of a user may be estimated based upon difference between the biometric information data calculated from pressure data and those at normal times [0043-0047]).
Regarding claim 5, modified Suganuma suggests the notification message indicates a message to adjust at least one of a suction intensity and a suction time (the devices notification may notifythe user of the health state result, and wherein this may include a suggestion of the time and method for sucking the aerosol supply device [0035]).
Regarding claim 6, modified Suganuma suggests storing the target suction ability and providing the user with a history of a suction ability based on the target suction ability (Suganuma teaches that the arithmetic device “20” includes a data receiving unit “21”, and an information storage unit “22” which stores the information data which is received by the data receiving unit and analyzes the data [0018, 0044-0045]. And further, Fig. 7 shows that a history/comparison graphs may be formed between previous data and current data, or between normal/abnormal data).
Regarding claim 7, modified Suganuma suggests the electronic device is a mobile communication terminal and the additional device is an electronic cigarette (as in the rejection of claim 1 above, the system may include the aerosol supply device “1” [Fig. 1, 0043-0044] which utilizes tobacco leaves [0022], such that this would clearly be an electronic cigarette. And the arithmetic device “20” may be a mobile terminal “30” which communicates with the electronic cigarette [0048-0051], and may be a smartphone or a device on the cloud for example [0049-0050]).
In the alternate, claim 2 are rejected under 35 U.S.C. 103 as being unpatentable over Suganuma (JP2020068739A, of record) in view of Kersey (US2021/0259316A1, of record), as applied to claim 1 above, and further in view of Bessant (WO2020/141128A1, of record).
Regarding claim 2, Bessant teaches an aerosol generating system (Fig. 1) which includes health monitoring facets [abstract]. The health monitoring device may comprise at least one of an air flow sensor, air pressure sensor, audio sensor, and electrochemical gas sensor, wherein a respiratory parameter is determined based upon this sensor data [pg. 4, lines 21-25]. The parameter may comprise the respiration capacity of the user for example which may assist in determining changes in lung function [pg. 4 line 25+]. These parameters may include total volume, flow speed, peak flow [pg. 4, line 30+]. One of ordinary skill in the art would have found it obvious to utilize additional inhalation information as suggested by Bessant in the system of Suganuma. One would have been motivated so as to provide additional inhalation factors which affect the respiration capacity of the user to improve the system [Bessant, pg. 4 lines 21+], as both Bessant/Suganuma are tied to health determinations/monitoring and which utilize aerosol generating devices, and one would have had a reasonable expectation for success given the overlapping subject matter.
Response to Arguments
Applicant’s arguments have been fully considered but they are not persuasive.
Applicant argues on pgs. 5-7 of their Remarks dated 8/27/2026, in regards to the 101 rejections, that the amended claims overcome the rejections. Applicant argues that the instant claims are similar to those of example 40 and that the application provides a practical application of any alleged abstract idea.
The Examiner respectfully disagrees. Unlike in example 40, the claim step of “outputting an additional notification to the user” does not appear to be a specific improvement over prior systems and does not provide a technical improvement. Applicant seems to argue that “conditional display of user information,” so only performing additional outputting if the status is less than or equal to a threshold value, is an improvement like in Example 40, “collecting additional traffic data relating to the network traffic when the collected traffic data is greater than the predefined threshold, the additional traffic data comprising Netflow protocol data”, but it is not apparent that this is any improvement and instead it is just outputting an additional value. Applicant argues that the outputting is by a display, but yet no display is claimed. Where the instant application is merely outputting a status of a suction ability to a user, example 40 is tied to adaptive monitoring and thus is using the data as a whole to provide an improvement in a particular application. The application as claimed is more similar to example 40 claim 2 in its current structure, wherein it is tied to a method for monitoring/outputting a value, and where the limitations of the claim are general and does not use the data for improving a particular application. Noted that even in claim 2, while some amount of traffic data specific limitations are recited "network delay, packet loss, or jitter", this is not considered to integrate the abstract idea into a practical solution.
Therefore, the instant claims have a different fact pattern from the claims of Example 40, and the new limitations are not considered to overcome the 101 rejections.
Further as claimed- the outputting in both the claim preamble and claim body could actually be read as a mental process. What is outputted does not seem particular as is just a target value and biometric information. The outputting as claimed is just providing/outputting more data. The claims do not recite any specific display method for this data, such that this “outputting” may be construed as a mental process. And therefore, can be read as insignificant extra-solution activity. See MPEP 2106.05 (g). See 101 rejections above for full details.
Applicant argues on pg. 8 of their filed Remarks that Kersey is silent on outputting an additional notification based on a status of a user. Applicant argues that Kersey is silent on receiving/outputting biometric information for a user. Applicant argues that estimating a volume of air based on detected airflow speed, as described by Kersey, is different from calculating a reference suction ability based on lung capacity information. Applicant argues that Kersey is silent on the estimation of air volume based on at least one of a type of heater, a characteristic of an aerosol generated by the additional device, or a type of cigarette used.
The Examiner respectfully disagrees. Regarding Applicant’s arguments that Kersey is silent on receiving/outputting biometric information for a user, the Examiner notes that the instant application nor the claims limits what is considered “biometric sensor and biometric information”, such that the claims must be considered under the broadest reasonable interpretation of each. The suction ability is tied to a user, as the instant application repeatedly states, such that a user’s unique inhalation or airflow may be considered to be biometric information under the broadest reasonable interpretation thereof. It is not required for the biometric information to be separate from the target suction ability for example, and the claim does not specify or limit what the lung capacity information or biometric information is to be. Additionally, it is noted that in the rejections in view of Kersey, Suganuma is optionally applied to further suggest this biometric information aspect.
Regarding Applicant’s assertion that Kersey does not teach a lung capacity information, what Applicant is arguing is not present in the claim. Applicant in no way restricts the definition of “lung capacity information” nor does the specification provide a special definition for this term. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). What is considered "lung capacity information" is not specifically included in the claim such that any parameter dealing with lung capacity may be considered within the broadest reasonable interpretation of the claim, of which the airflow speed would clearly be indicative of a lung parameter. And additionally, pg. 26 of the originally filed specification details that an amount of force exhalation is a type of lung capacity information, such that the air flow speed would be considered a measurement of the amount.
Regarding outputting an additional notification based on a status of a user, Kersey notes that the feedback is provided to the user based upon deviation from the intended inhalation profile [0061-0062], such that this would be considered to be the status being different from a threshold to determine this factor. The feedback may be in real time and/or after inhalation is complete [0064], such that the feedback may occur continuously such that there would naturally be additional notifications generated according to this criterion. In other words, the real-time notification may be considered the base generation of a notification message, and the notification after inhalation is complete may be considered to be the “additional” notification to the user, such that Kersey readily suggests these aspects of the additional notification.
Regarding the final paragraph of the amended claim, it is noted that the limitation “a characteristic of an aerosol generated by the additional device” may be any characteristic related to the aerosol generated. The air flow speed or volume measurements would be of the aerosol generated, such that this would be considered a characteristic of the aerosol generated by the additional device, so that this could be the suction amount, speed of inhalation, etc. Also, it is noted that Kersey’s profiles may be set according to a type of vapor being provided [0052], which would be dependent upon the type of cigarette used in the additional device.
Applicant argues on pg. 9 of their filed Remarks that Suganuma fails to provide guidance to the user to achieve the reference suction ability. Applicant argues that Suganuma is silent on displaying biometric information and suction ability based on a threshold comparison. Applicant argues that the user’s puff amount and/or suction amount is not lung capacity information. Applicant argues that Suganuma is silent on the final paragraph of the amended claim.
The Examiner respectfully disagrees. Suganuma specifically states the notification data (in addition to yielding the puff/pressure data, may include suggestions of the time and method for sucking the device [0035], such that this clearly provides guidance to the user. Regarding Suganuma being silent as to displaying information based on a threshold comparison, it is noted that the rejections in question are additionally in view of Kersey which details the common practice of comparing the data with intended data sets and outputting the notifications if the value is below the intended.
Regarding Applicant’s assertion that Suganuma does not teach a lung capacity information, what Applicant is arguing is not present in the claim. Applicant in no way restricts the definition of “lung capacity information” nor does the specification provide a special definition for this term. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). What is considered "lung capacity information" is not specifically included in the claim such that any parameter dealing with lung capacity may be considered within the broadest reasonable interpretation of the claim, of which the number of puffs, pressure, etc., would clearly be indicative of a lung parameter. If Applicant wishes to specifically limit the lung capacity information to a specific parameter, such limitations must be added to the claim.
Regarding the final paragraph of the amended claim, it is noted that the limitation “a characteristic of an aerosol generated by the additional device” may be any characteristic related to the aerosol generated. The number of puffs, pressure, etc., would be of the aerosol generated, such that this would be considered a characteristic of the aerosol generated by the additional device, so that this could be the suction amount, speed of inhalation, etc. Additionally, Suganuma details that the type of aerosol substrate is determined such that it may suggest a type of aerosol substrate to use instead of another [0035], such that the type of substrate/cigarette would clearly influence the reference suction ability calculation.
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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/T.F.S./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
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