DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Claims 20-23 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 06/11/2026. Claims 1-7 and 11-19 are examined herein.
Regarding Applicant’s request to withdraw the Restriction Requirement (see Response p. 1), the Examiner is acutely aware of the burden placed on Applicants by Restriction Requirements and respectfully disagrees that such burden outweighs the Examiner’s burden for searching and considering additional claims, particularly due to the availability of rejoinder to the Applicant. Regardless, such burdens are legally irrelevant to the unity of invention analysis and the Restriction Requirement is therefore maintained.
Claim Objections
Claims 1-3, 11, and 18 are objected to because of the following informalities:
Claim 1 recites four instances of “heater” at l. 11, 12, 15, and 15 which each appear to be a typo of “heating element” previously introduced at l. 7;
Claim 1 recites “increase a flow” at the second-to-last line which was previously introduced and should therefore recite “increase [[a]]the flow”;
Claims 2 and 11 each recite one instance of “heater” which appear to be typos of “heating element” previously introduced in claim 1;
Claim 3 appears to have been inadvertently amended to recite “he control processor” which is a typo of “the control processor”;
Claim 11 recites “a flow of electrical energy” which was previously introduced in claim 1 and should therefore recite “[[a]]the flow of electrical energy”;
Claim 18 recites “a person” at l. 4 which was previously introduced at l. 3 and should therefore recite “[[a]]the person”.
Appropriate correction is required.
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 3-5 and 19 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 3 recites “the absolute change in resistance”. It is unclear whether this limitation is referring back to the “subsequent change in resistance” introduced in claim 1 or is referring to a different change in resistance. The Examiner recommends amending the claim to recite “[[the]]an absolute change in resistance” to clearly introduce a different change in resistance, and the claims are interpreted as such for purposes of this office action.
Claim 4 recites “just below” a vaporisation temperature, which is a relative term lacking specificity. It is unclear what temperature or range of temperatures is required by the claim language, and the specification does not provide clarity. The Examiner recommends amending the claim to recite “
Claim 5 recites “if change exceeds a second predetermined threshold”. It is unclear whether “change” refers back to the “subsequent change in resistance” of claim 1 or is referring to a different change in resistance. The Examiner recommends amending the claim to recite “if the subsequent change exceeds”, and the claims are interpreted as such for purposes of this office action.
Claim 5 recites the limitation “the first”. There is insufficient antecedent basis for this limitation in the claim (because claim 5 is not dependent on claim 3 which introduced the first predetermined threshold). The Examiner recommends amending the claim to recite “[[the]]a first”, and the claims are interpreted as such for purposes of this office action.
Claim 19 recites “a control processor”. It is unclear whether this limitation is referring back to the “control processor” introduced in claim 1 or is referring to a second control processor. The Examiner recommends amending the claim to recite “[[a]]the controller processor”, and the claims are interpreted as such for purposes of this office action.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 6-7, 11-15, and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Atkins (US 2021/0112874 A1, provided in IDS dated 06/23/2026).
Regarding claim 1, Atkins is directed to anemometric-assisted control of a vaporizer (Title):
The vaporizer (“aerosol delivery device”) includes a controller (“control processor”) with a processor [0025, 0028];
The vaporizer includes a battery (“power source”) and a removable cartridge (“disposable removably attachable portion”) [0074-75];
The cartridge includes a source of vaporizable material (“payload”) and a heater (“heating element”) [0074]. The heater is electrically connected to the battery and controller when the cartridge mates to a body of the vaporizer [0074, 0109];
The controller initially delivers a low power to the heating element to achieve a standby temperature (which reads on the “initial state” as claimed), then detects a resistance change due to airflow cooling of the heater, and accordingly increases the power to a higher active temperature (which reads on the “subsequent state” as claimed) [0030-32, 0084].
Regarding claim 2, the controller is configured to return to the standby state and decreases the power after the user has finished puffing [0044], which reads on the claim language.
Regarding claim 3, the controller is configured to detect a drop in temperature via a corresponding change in resistance, and when the drop exceeds a pre-determined threshold (“if the absolute change in resistance exceeds a first predetermined threshold”), the controller changes power from the standby state to reach the target vaporization temperature (“transition to the subsequent state”) [0088], which reads on the claim language.
Regarding claim 6, the active temperature is a vaporization temperature [0034-35], which reads on the claim language.
Regarding claim 7, the heating element 803 is disposed within an airflow path 807 ([0075], Fig. 8), which reads on the claim language.
Regarding claim 11, the controller can stop supplying power to the heater when the vaporizer is in an OFF state [0051, 0062], which reads on the claimed “shut-off state”.
Regarding claims 12-13, the controller may switch the vaporizer to the OFF state when a user operates an ON/OFF switch [0033, 0048-51, 0087] (“ii. a user interface instruction to enter the shut-off state” per claim 13), which reads on the claim language.
Regarding claims 14-15, the controller may switch the vaporizer from the OFF state to the standby state when a user operates an ON/OFF switch [0033, 0048-51, 0087] (“i. a user interface instruction to enter the initial state” per claim 15), which reads on the claim language.
Regarding claim 19, Atkins discloses an accelerometer (“first sensor”) for detecting motion and a capacitive sensing mechanism (“second sensor”) for detecting a user’s lip contact [0049-50]. Since the accelerometer alone may have difficulty distinguishing general movements from specific movements associated with use of the vaporizer, the accelerometer and capacitive sensing mechanism may be used in conjunction to signal the microcontroller to turn the vaporizer ON (“a two-factor detection processor operable to calculate when detection of the first interaction and second interaction meet at least a first predetermined criterion; and a control processor operable to change an operational state of the aerosol delivery device in response to the detection of the first interaction and second interaction being calculated to meet the at least first predetermined criterion”) [0049-50], which reads on the claim language.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Atkins (US 2021/0112874 A1) as applied to claim 1, in view of Moloney (CA 3092909 A1).
Regarding claim 4, Atkins discloses the controller delivering low power for a standby temperature, detecting a resistance change, and increasing the power for a higher active temperature, as set forth above in the discussion of claim 1. However, Atkins discloses the active temperature being a vaporization temperature [0032] and thus fails to disclose “the increase in temperature is to just below a vaporisation temperature for the payload” as claimed. (emphasis added)
Moloney is directed to an electronic aerosol provision system (Title). Moloney discloses a pre-heating process wherein the heater is pre-heated from ambient temperature to a near vaporisation temperature (“just below a vaporisation temperature” as claimed), which advantageously allows the heater to more quickly heat up to the vaporisation temperature upon activation (p. 10 l. 1-8). Moloney teaches performing such pre-heating upon detecting the start of a user’s breath (p. 15 l. 1-3). Pre-heating from ambient based on inhalation may be too slow, and thus Moloney teaches a heating gradient wherein multiple signals are detected to begin pre-heating (p. 15 l. 4-32). One of ordinary skill in the art would recognize that, when combining Atkins and Moloney, Atkins already discloses the standby temperature which is above ambient, and thus Moloney’s teachings could be achieved by simply performing the pre-heating from Atkins’ standby temperature to Moloney’s near vaporisation temperature upon breath detection (see Moloney at p. 18 l. 4-8 explaining that any statistical analysis technique could be used to correlate signal inputs with timing outputs).
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Atkin’s controller to perform Moloney’s pre-heating to a near vaporisation temperature upon detection of the start of a user breath (detecting such breath via resistance as taught by Atkins) (which reads on the claim language), because Atkins and Moloney are both directed to electronic vaporization devices, Moloney teaches that this advantageously increases the heating responsiveness, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Regarding claim 5, Moloney discloses heating to the vaporisation temperature after pre-heating to the near vaporisation temperature (p. 10 l. 1-8) (“the increase in temperature increases further to a vaporisation temperature for the payload”). Moloney discloses that puff activation of the heater is well-known in the art (p. 1 l. 14-31) (Atkins also discloses puff activation as set forth above in the discussion of claim 1). Moloney specifically teaches performing the pre-heating at the start of an intake breath because this is part of a ramp-up to activation (p. 15 l. 1-5, emphasis added), and thus it would be obvious to fully activate the heater to the vaporisation temperature upon detection of a full puff, for instance by detecting a longer puff time (“threshold period of time”) or higher puff strength (“second predetermined threshold greater than the first”) than is required for the pre-heating.
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to further modify Atkins’ controller to, during the pre-heating, raise the temperature to the vaporisation temperature if a full puff is detected (which reads on the claim language), for the same reasons as set forth above in the discussion of claim 4, and further because Moloney teaches performing the pre-heating at the start of a user breath and then raising to the vaporisation temperature afterward, and because both references teach heater activation via puff detection.
Claims 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Atkins (US 2021/0112874 A1) as applied to claim 11, in view of Ding (US 2020/0345070 A1).
Atkins discloses the OFF state as set forth above in the discussion of claim 11. Atkins discloses switching from the OFF state to the standby state when a user operates an ON/OFF switch [0033, 0048-51, 0087], but Atkins fails to disclose switching from the OFF state directly to the puffing state at the vaporization temperature, and thus fails to disclose “in the shut-off state, the control processor is operable to enter the subsequent state if at least a first predetermined criterion is met” per claim 16 and “the or each predetermined criterion is a respective one selected from the list consisting of: i. a user interface instruction to enter the subsequent state; and ii. an electrical grounding of a predetermined portion of the delivery device” per claim 17.
Ding is directed to a tobacco evaporator and heating control method (Title). Ding discloses a switch which starts operation and includes a temperature adjustment button, so that a user can manually set a predetermined temperature of a heating element [0080]. One of ordinary skill in the art would recognize that this advantageously provides a user with more precise control over the heating element temperature. One would further recognize that Atkins’ ON/OFF switch could similarly be modified to include Ding’s temperature adjustment button to allow a user to turn on the vaporizer and set the heating element to the vaporization temperature, which reads on claims 16-17.
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Atkins by incorporating Ding’s temperature adjustment button into Atkins’ ON/OFF switch such that a user may turn on the vaporizer and set the heating element to the vaporization temperature, because Atkins and Ding are both directed to electronic vaporization devices, Ding teaches allowing a user to manually set the heating temperature which one of ordinary skill in the art would recognize is an advantage, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Atkins (US 2021/0112874 A1) as applied to claim 1, in view of Sur (US 2017/0181223 A1).
Atkins fails to disclose “at least one proximity sensor configured to detect a person without physical contact by them with the sensor; and configured to output a detection signal when a person is detected; an activity state processor configured to receive the detection signal, and to determine whether to change an operational state of the aerosol delivery device between a first activity state and a second activity state based at least in part on the received detection signal” as claimed.
Sur is directed to proximity sensing for an aerosol delivery device (Title). Sur discloses a proximity sensor which can detect the presence of a user [0006] (“at least one proximity sensor configured to detect a person without physical contact by them with the sensor”). The proximity sensor outputs a proximity-detected signal, and a control component can initiate operation of a heating element in response to the signal (Abstract, [0012]) (“configured to output a detection signal when a person is detected; an activity state processor configured to receive the detection signal, and to determine whether to change an operational state of the aerosol delivery device between a first activity state and a second activity state based at least in part on the received detection signal”). This allows activation of the device without requiring any physical contact (Abstract), which one of ordinary skill in the art would recognize is an advantage increasing the responsiveness and readiness of the device for a user.
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Atkins by incorporating Sur’s proximity sensor and configuring Atkins’ controller to receive the proximity-detected signal and enter into the standby state or the active state, because both Atkins and Sur are directed to electronic vaporization devices, Sur teaches that this allows activation without physical contact which one of ordinary skill in the art would recognize as an advantage, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Murison (US 2017/0048927 A1, provided in IDS dated 01/12/2024) discloses a system including a removable cartridge [0067], and discloses compensating a heating coil temperature for cooling air-flow [0172], which is considered particularly relevant to claim 1.
Bilat (JP 2021052799 A, provided in IDS dated 06/23/2026, US 2021/0212170 A1 cited herein as English equivalent) discloses a system including a device and a removably coupled cartridge [0032], and discloses bringing a heater back up to a target temperature after airflow cooling [0175], which is considered particularly relevant to claim 1.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL PATRICK MULLEN whose telephone number is (571)272-2373. The examiner can normally be reached M-F 10-7 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H. Wilson can be reached at (571) 270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL PATRICK MULLEN/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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