CTNF 18/565,388 CTNF 86273 DETAILED ACTION Notice of Pre-AIA or AIA Status 07-03-aia AIA 15-10-aia 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 § 103 07-06 AIA 15-10-15 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. 07-20-aia AIA 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. 07-23-aia AIA 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. 07-20-02-aia AIA 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. ____________________________________________________________________ 07-21-aia AIA Claim (s) 1-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over PLOJOUX et al. (US 2017/0042243) and AMPOLINI et al. (US 2014/0270727) . With respect to claim 1 ¸ PLOJOUX et al. discloses an electrically heated aerosol generating device (Abstract; Title). The device comprising a cigarette comprising an aerosol generating substance (Paragraphs [0036], and [0050]); a puff detecting sensor configured to detect a puff (Paragraph [0020]); a controller configured to control power supplied to a heater configured to heat the cigarette (Paragraphs [0024], [0026], [0046], [0051]). PLOJOUX et al. does not explicitly disclose that the controller is configured to calculate the accumulated inhalation amount as claimed. AMPOLINI et al. discloses an aerosol generator (Abstract) comprising wherein the control component (integrated with the battery, and thus part of the main body of AMPOLINI et al.) includes a puff sensor (Paragraph [0031]). Each cartridge has a puff count capacity that is on the cartridge (Paragraph [0131]) and is read by the controller (Paragraphs [0130], [0131], [0114]) and if a sufficient number of puffs are remaining, the controller allows activation of the heating component. If the cumulative repeated puff count exceeds a threshold (e.g., first time point of 8 second), then the device is locked out (Paragraph [0130]) and if the calculated puff count data is not exceeded then the user is allowed to puff (Paragraph [0131]). AMPOLINI et al. further discloses that the power to the heater is prevented from activating if the puff count exceeds a preset cumulative amount (Paragraph [0130]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide the claimed puff counting capability of AMPOLINI et al. to that controller of PLOJOUX et al. so that the device may lock the user out of heating the cigarette in the event that the cumulative inhalation amount exceeds a first time point, and allows the user to inhale in the event that the first time point has not been reached. With respect to claims 2 and 3 , AMPOLINI et al. discloses that the controller is configured to define the first time point (e.g., 8 second puff cumulated) and if not reached, the user is allowed to continue puffing. Moreover, the user is notified of how many puff-sections remain (Paragraph [0131]). The remaining puffs represent the “additional time” or “additional number” to be added to the smoking time/puffs until the allotted first time/puffs is reached. With respect to claim 4, AMPOLINI et al. discloses that the controller is configured to output LED signals (e.g., guidance massage) about how much extended smoking time remains (e.g., 20 3-second puffs) and then allow the user to continue puffing (Paragraphs [0130]-[0131]). The second time point represents the last about of second-puffs. With respect to claim 5, AMPOLINI et al. discloses that the controller is configured to generate a signal after 20 3-second puffs (e.g., 60 seconds after first puff) have been taken from the normal puff (e.g, first time point). The next signal is given starting at 5 3-second puffs (e.g., 15 second) remaining (Paragraph [0131]). The courts have generally held that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) . MPEP 2144.05, I. In the instant case the first time point in AMPOLINI et al. is 60 seconds, while the claimed range includes 120 seconds. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to notify the user of a first time period having 40 3-second puffs (e.g., 120 seconds ) so that the user can be notified at an earlier point in the life of the cartridge how many puffs are remaining. Additionally, the second time period in claim 5 of 20 seconds would have been obvious in view of the time in AMPOLINI et al. of 15 seconds, so that the user can be notified two additional puffs earlier before the end of the cartridge. The courts have also generally held that "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP 2144.05, II, A. In the instant case, the first and second time points are identified in AMPOLINI et al.. and a change in the number of puffs taken or remaining in each time point does not change the operation of the device, only the time at which the notifications are sent. Thus, discovering the optimal time for the first and second time points during the use of the cigarette is considered routine optimization and prima facie obvious. With respect to claim 6, AMPOLINI et al. discloses that the controller is configured to generate a signal after 20 3-second puffs (e.g., 60 seconds after first puff) have been taken from the normal puff (e.g, first time point). The next signal is given starting at 5 3-second puffs (e.g., 15 second) remaining (Paragraph [0131]). The courts have generally held that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) . MPEP 2144.05, I. In the instant case the first time point in AMPOLINI et al. is 60 seconds, while the claimed range includes 120 seconds. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to notify the user of a first time period having 40 3-second puffs (e.g., 120 seconds ) so that the user can be notified at an earlier point in the life of the cartridge how many puffs are remaining. Additionally, the second time point in claim 6 of 11 puffs would have been obvious in view of the number of remaining puffs of 5 3-second puffs, so that the user can be notified six additional puffs earlier before the end of the cartridge. The courts have also generally held that "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP 2144.05, II, A. In the instant case, the first and second time points are identified in AMPOLINI et al.. and a change in the number of puffs taken or remaining in each time point does not change the operation of the device, only the time at which the notifications are sent. Thus, discovering the optimal time for the first and second time points during the use of the cigarette is considered routine optimization and prima facie obvious. With respect to claim 7 , AMPOLINI et al. discloses that the controller is configured to generate a signal after 20 3-second puffs (e.g., 60 seconds after first puff) have been taken from the normal puff (e.g, first time point). The next signal is given starting at 5 3-second puffs (e.g., 15 second) remaining (Paragraph [0131]). The courts have generally held that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) . MPEP 2144.05, I. In the instant case the first time point in AMPOLINI et al. is 60 seconds, while the claimed range includes 180 seconds. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to notify the user of a first time period having 60 3-second puffs (e.g., 180 seconds ) so that the user can be notified at an earlier point in the life of the cartridge how many puffs are remaining. The courts have also generally held that "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP 2144.05, II, A. In the instant case, the first and second time points are identified in AMPOLINI et al.. and a change in the number of puffs taken or remaining in each time point does not change the operation of the device, only the time at which the notifications are sent. Thus, discovering the optimal time for the first and second time points during the use of the cigarette is considered routine optimization and prima facie obvious. With respect to claim 8 ¸ AMPOLINI et al. disclose that the puff sensor is a pressure sensor (Paragraph [0033]). With respect to claim 9 , AMPOLINI et al. disclose that the puff sensor is a temperature sensor (Paragraph [0033]). _________________________________________________________________________ 07-22-aia AIA Claim (s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over PLOJOUX et al. (US 2017/0042243) and AMPOLINI et al. (US 2014/0270727) as applied to claim s 1-9 above, and further in view of MCCAWLEY et al. (US 2005/0045175) . With respect to claim 10 ¸ modified PLOJOUX et al. does not explicitly disclose the integration of pressure for each puff. MCCAWLEY et al. discloses an apparatus and method for delivery of an aerosol (Abstract; Title). The volume of air flow is measured by using a pressure device (Abstract; Paragraph [0039]) and the data collected by the controller (Paragraphs [0039]-[0041]). The total volume of inhalation for any number or respiratory cycles is calculated by integrating the pressure transducer voltage (Paragraph [0055]) and allows the controller to compensate for volume drive (Paragraphs [0056]-[0058]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide the controller of PLOJOUX et al. with the capability to integrate each inhalation from the device of PLOJOUX et al. as measured from a pressure sensor, as taught by MCCAWLEY et al. so that any drift can be accounted for when determining the volume of aerosol to generate . Claim Rejections - 35 USC § 102 07-06 AIA 15-10-15 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. 07-07-aia AIA 07-07 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 – 07-08-aia AIA (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. 07-15-aia AIA Claim(s) 11 is/are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by AMPOLINI et al. (US 2014/0270727) . With respect to claim 11 ¸ AMPOLINI et al. discloses a method performed by an aerosol generating device (Abstract; Paragraph [0132]). The method comprises based on a puff detected by a puff detection sensor (Paragraphs [0031], [0034], [0061], [0066], [0068], [0087], [0088]) calculating an accumulated inhalation amount (Paragraphs [0058], [0072], [0131]-[0132]) up to a point (e.g., 20 3-second puffs after the normal puff) (Paragraph [0131]). Once reached (e.g., calculated accumulated inhalation amount satisfies a condition for puff compensation), the remaining puff number is changed (e.g., 5 3-second puffs remaining) which is signaled by an LED (Paragraph [0131]). With respect to claim 12 , once the remaining 5 3-second puffs are taken (e.g, the claimed monitoring) the LED is directed to flash 5 times when the cartridge is expired (e.g., changed remaining puff number) (Paragraph [0131]). With respect to claims 13 and 14 ¸ AMPOLINI et al. discloses calculating an accumulated inhalation amount (Paragraphs [0058], [0072], [0131]-[0132]) up to a point (e.g., 20 3-second puffs after the normal puff) (Paragraph [0131]). Once reached (e.g., calculated accumulated inhalation amount satisfies a condition for puff compensation), the remaining puff number is changed (e.g., 5 3-second puffs remaining) which is signaled by an LED (Paragraph [0131]). once the remaining 5 3-second puffs are taken (e.g, the claimed monitoring) the LED is directed to flash 5 times when the cartridge is expired (e.g., changed remaining puff number) (Paragraph [0131]). The total number puffs of the aerosol material represents the “preset standard inhalation amount”. Thus, the changed remaining time is calculated based on the total number of puffs remaining until the total number of puffs available are reached. With respect to claim 15, AMPOLINI et al. discloses that the changer comprises changing the output guidance (LED signals (Paragraphs [0130], [0131]) at each time point based on inhalation patterns of the user (e.g., user input). Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEX B EFTA whose telephone number is (313)446-6548. The examiner can normally be reached 8AM-5PM EST M-F. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Tucker can be reached at 571-272-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. 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If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /ALEX B EFTA/Primary Examiner, Art Unit 1745 Application/Control Number: 18/565,388 Page 2 Art Unit: 1745 Application/Control Number: 18/565,388 Page 3 Art Unit: 1745 Application/Control Number: 18/565,388 Page 4 Art Unit: 1745 Application/Control Number: 18/565,388 Page 5 Art Unit: 1745 Application/Control Number: 18/565,388 Page 6 Art Unit: 1745 Application/Control Number: 18/565,388 Page 7 Art Unit: 1745 Application/Control Number: 18/565,388 Page 8 Art Unit: 1745 Application/Control Number: 18/565,388 Page 9 Art Unit: 1745
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