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 without traverse of group II (claims 23-30) in the reply filed on 7/20/2026 is acknowledged.
Claims 16-22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention/group, there being no allowable generic or linking claim. Election was made without traverse as noted above.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the following features
DC/AC converter
Means to detect a puff
Controller (structure for controlling power, measuring)
Monitoring a power source (structure for detecting current, conductance or resistance)
Temperature sensor
Temperature sensor located within the cavity
must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) 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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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 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.
Claims 23-30 are 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.
Claim 23 recites structural or functional language concerning the controller and it’s configuration. However, there is insufficient structure or programming claimed for the controller to perform the intended use or achieve it with programming. The issues are detailed below:
“Perform, during a first heating phase during user operation of the aerosol-generating device for producing an aeroosol,”. The device does not have structure or programming to perform a first heating phase.
“Perform…a first iteration of a calibration process for measuring one or more calibration values associated with the susceptor.” The controller is not connected to the susceptor. No circuitry has been claimed that is capable of a calibrating process. Programming the controller cannot perform the function and therefore, cannot be structure.
“during a second heating phase during user operation…” The device does not have structure or programming to perform a second heating phase.
“control power provided to the power supply electronics such that the temperature of the susceptor is adjusted based on the one or more calibration values.” First, the controller is not disclosed as being structurally connected to the power supply electronics or any other part of the device. Second, no structure has been claimed that can determine the temperature of the susceptor. Programming of a controller cannot determine temperature without explicit structure such as thermocouples or specific circuit elements.
“remeasure at least one or more calibration values by performing one or more further iterations of the calibration process for adjusting the one or more calibration values,.” No circuitry has been claimed that is capable of a calibrating process. Programming the controller cannot perform the function and therefore, cannot be structure.
“wherein the temperature of the susceptor is adjusted based at least in part on the at least one of the one or more calibration values resulting from the latest iteration of the calibration process prior to adjusting the temperature of the susceptor.” The controller cannot perform any of these steps, even if so programed, based on the claimed structure.
“wherein the controller is further configured to, in response to detecting a puff during user operation of the device, prevent re-measuring the at least one of the one or more calibration values.” The controller does not have any structure capable of detecting a puff. Therefore, it cannot perform this function even if it has programming.
As a result of the missing structural elements required to perform the steps the controller is configured to execute, the limitations will be interpreted as intended use and not structural programming elements. Additional limitations in dependent claims without structure to perform the function will also be treated as intended use.
Claim 24 are 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.
Claim 24 includes the limitation, “in response to detecting a puff at a predetermined duration of time before performing a respective iteration of calibration process, postpone performing a respective iteration of the calibration process for the duration of the puff.” The limitation is indefinite because it cannot be determined the limitations of the claim. The predetermined duration of time appears to refer to the detection of the puff, but it could refer to the time before performing a respective iteration. However, if it refers to a respective iteration, it is unclear if this is at a predetermined duration of time, or postponed from this predetermined period of time. In addition, the currently claimed device does not have a structure capable of detecting puffs and the controller cannot be configured or programed to detect puffs.
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.
Claim(s) 23, 24, and 30 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Korus et al. (US 20210204612).
Regarding claim 23 and 30, Korus et al. disclose an aerosol generating device with control circuitry (i.e. controller [0051][0052]), and inductive element [0053], DC power supply [0056](inherently produces DC current and voltage), a resonant circuit for producing alternating current ([0053],[0060],[0043],[0044], etc., i.e. an DC/AC converter).
In addition to these claimed elements, Korus et al. also disclose:
a “temperature determiner” circuit that measures the frequency, DC current, and/or DC supply voltage of the LC resonant circuit that provides alternating current to the susceptor to determine temperature of the susceptor [0004]-[0009],
A temperature sensor to measure the temperature of the susceptor (e.g. a thermocouple, [0131], and
A Puff detector [0052].
Korus et al. disclose that the device performs calibration during a first operation of the aerosol-generating device (“…temperature determiner may be configured to
perform the selection of a calibration each time the aerosol generating device is powered on, or each time the aerosol generation device enters into an aerosol generating mode.” [0024]).
The device measures one or more calibration values associated with a susceptor inductively coupled to the inductive heating arrangement, wherein the susceptor is
configured to heat an aerosol-forming substrate (" …calibration of values between the effective grouped resistance and the temperature of the susceptor arrangement may be one of a plurality of calibrations between the effective grouped resistance and the
temperature of the susceptor arrangement…",paragraph [0018]).
During a second heating phase during user operation of the aerosol generating
Korus et al. disclose controlling power provided to the inductive heating arrangement
such that the temperature of the susceptor is adjusted based on the one or more calibration values (…the voltage supply may be switched off or lowered (either through lowering the voltage supplied or by lowering the average voltage supplied by altering a duty cycle if using a pulse width modulation scheme) if the determined susceptor temperature T is above a predetermined value.", paragraph [0135]).
Also, during the second heating phase, re-measuring at least one of the one or more calibration values by performing one or more further iterations of the calibration process for adjusting the one or more calibration values ("…the control circuitry 106 may be configured to repeat the process for selecting the appropriate calibration curve when the aerosol generating mode is first selected…",paragraph [0142]).
The temperature of the susceptor is adjusted based on at least one of the calibration values from the latest calibration step, because Korus states that calibration happens each time [0024][0135], such as when the inductor is first supplied with current [0142].
Regarding claim 24, Korus et al. disclose initiating calibration with power on or with operation of the device but also disclose that the control circuitry can have several modes of operation such as calibration as an initial power on state, where power is supplied from the battery to the control circuit but not the resonant circuit, or during transition initiated by a user pushing a button, or activation through pushing a button or a puff sensor. The control circuit can also determine what a susceptor is removed and be configured to repeat the process, “at the next opportunity”. The control circuit is capable of detecting a puff and determining if a calibration process should occur or not based on the modes disclosed by Korus et al.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claim(s) 25-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Korus et al. (US 20210204612) as applied to claim 23 above, and further in view of Yannick et al. (US 2021/0145071 A1) as the English equivalent of CN 110731125A (published 1/24/2020).
Regarding claims 25-28, Korus et al. discloses an induction-based aerosol generator with control circuitry and power circuitry to calibrate and control temperature of the induction susceptor system. Korus et al. expressly disclose measuring current, voltage and frequency of the LC circuit (i.e. current and conductance). Korus et al. do not disclose that the calibration process comprises heating and cooling the susceptor through a predetermined temperature range and identifying a start point and end point of a reversible phase transition of the susceptor (i.e. inflection).
However, Yannick et al. disclose that the curie temperature (i.e. the temperature of a phase transition of a susceptor) can be determined by measuring the rate of change of the measured current of a heating pulse. Yannick et al. disclose that:
This may provide an indication that the susceptor is at the Curie temperature and the aerosol-forming substrate is at the predetermined maximum temperature. Thus, the power supply electronics may be configured to interrupt the supply of power from the DC power supply in a heating pulse to stop or prevent further heating of the aerosol-forming substrate. In some embodiments, such an interruption in the supply of power from the DC power supply to the inductor may define the end of each heating pulse.[0062]
It would have been obvious to one of ordinary skill in the art at the time of invention to operate control circuit of the induction heating system of Korus et al. to detect and prevent exceeding the curie temperature of the susceptor.
Yannick et al. go on to disclose that a second susceptor material may be present that has a lower curie temperature. When the temperature of the susceptor and aerosol generated to reach the curie point of the second material, the phase change can be detected by a change in the circuit and therefore the temperature of the susceptor and aerosol material can be detected [0066]-[0076]. It would have been obvious to one of ordinary skill in the art at the time of invention to use the control of Yannick et al. in the invention of Korus et al. in order to better determine (i.e. calibrate) the temperature of the susceptor and aerosol generator and to stop heating.
Yannick et al. further disclose:
The power supply electronics of the inductive heating device of the present invention may be configured to detect the Curie transition of the second susceptor material. In other words, the power supply electronics of the inductive heating device of the present invention may be configured to detect a temporary inflection in the profile of the current supplied from the DC power supply caused by the phase change of the second susceptor material. Detection of the Curie transition may enable the power supply electronics to determine when to stop or reduce the amount of power being supplied to susceptor to avoid the susceptor from overheating the aerosol-forming substrate. [0074]
The temporary inflection in current is the start point and end point of the curie transition, where Yannick et al. disclose stopping power to avoid overheating. The inflection in current inherently has a starting current value and an ending current value.
Claim(s) 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Korus et al. (US 20210204612) as applied to claim 23 above, and further in view of Minskoff et al. (US 20160021930 A1).
Korus et al. disclose a puff sensor but do not disclose a temperature sensor used to detect air flow (i.e. a puff) by measuring a change in temperature. However, these types of sensors are well known in the art. For instance, Minskoff et al. disclose a thermal mass flow sensor that is a combination of two or more temperature sensors and a small heater [0065]-[0166]. It would have been obvious to one of ordinary skill in the art at the time of invention to use a mass air flow sensor containing multiple temperature sensors to determine air flow as disclosed by Minskoff et al. as the puff sensor in the invention of Korus et al. Doing so would allow determination of air flow rate in addition to simply detecting the start of a puff.
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 23-30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 26 and 27 of copending Application No. 18577917 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the concern the same inductive heating device with DC/AC convert, induction heater intended to heat a susceptor and include the similar limitations directed to the function of calibration.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J FELTON whose telephone number is (571)272-4805. The examiner can normally be reached Monday, Thursday-Friday 7:00-4:30, Wednesday 7:00-1:00.
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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 J Felton/Primary Examiner, Art Unit 1747
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