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 Arguments
Applicant’s arguments with respect to claim(s) 1, 11, and 16 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Applicant amended claims 1 and 11 with a part of claim 10, which changed the scope of the claim and necessitated a new search resulting in a new reference.
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 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 of this title, 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.
Claims 1-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over D1 (US 20150020804 A1) in view of D2 (US 20170265524 A1).
With regards to claims 1, 2, 11, and 16, D1 discloses an aerosol device comprising: a main device including control circuitry for controlling an array of emitters and to process signals from an array of sensors [0017-0020] (Fig. 1); and a cartridge 10 engaged with the main device, the cartridge including an aerosol chamber that is at least partially transparent (optical paths through the tube require transparent portions (e.g., windows or walls)), an array of emitters 6B, 6C arranged outside of the aerosol chamber, and an array of sensors 8B, 8C arranged outside of the aerosol chamber (Fig. 1). D1 does not teach a heating element, the heating element being electrically operated. D2 teaches an e-vaping device 60 comprising a heating element 24 configured to generate heat to vaporize pre-vapor formulation, and further wherein said heating element is electrically operated by control circuitry 11 that controls the supply of electrical power to the heating element [0050, 0076, 0089-0092]. It would have been well known, obvious, and predictably suitable to one with ordinary skill in the art to substitute the piezoelectric aerosol generator of D1 with the electrically operated aerosol generator and heating element taught by D2 in order to generate aerosol for analysis, since such a substitution would have been a predictable use of a known aerosol generating technique to perform the same aerosol generation function while retaining the aerosol monitoring capabilities of D1.
With regards to claim 3, D1 does not explicitly teach wherein the main device includes a sensor separate from the array of sensors. Nevertheless, such a modification would have been known and considered obvious in order to provide system level monitoring, feedback, and/or safety data.
With regards to claim 4, D1 discloses wherein the control circuitry is in communication with the array of emitters and the array of sensors [0017-0019].
With regards to claim 5, D1 discloses wherein the main device further includes a power supply and a housing, the housing enclosing the power supply and the control circuitry [0002] (portable, battery powered device which necessarily requires the claimed configuration).
With regards to claims 6, 14, and 17, D1 discloses wherein the array of emitters includes a first emitter and a second emitter, the first emitter configured to emit light having a first wavelength, the second emitter configured to emit light having a second wavelength, the first wavelength being different from the second wavelength [0016].
With regards to claims 7 and 8, D1 does not teach the claimed wavelengths. However, such a modification would have been known and considered obvious depending upon the type of aerosol and/or analysis. As such, it would have been well known, obvious, and predictably suitable to one with ordinary skill in the art to modify D1 with the claimed wavelengths in view performing infrared analysis.
With regards to claim 9, D1 discloses wherein the array of sensors includes a first sensor and a second sensor, the first sensor configured to receive the light having the first wavelength, the second sensor configured to receive the light having the second wavelength (Fig. 1; each sensor receives light from a corresponding emitter).
With regards to claims 10 and 12, D1 does not tech the claimed outlet end and liquid storage. However, D2 teaches an outlet end 19 and a liquid storage configured to hold a supply of liquid aerosol-forming substrate [0043, 0047, 0051-0055]. It would have been well known, obvious, and predictably suitable to one with ordinary skill in the art to modify D1 with the claimed configuration as taught by D2 since they are conventional structure components of the cartridge already incorporated in the modified device of claim 1 and are necessary for storing and delivering the aerosol-forming liquid to the heating element.
With regards to claim 15, D1 discloses wherein the array of emitters is opposite to the array of sensors (Fig. 1).
With regards to claim 18, D1 discloses wherein the controller is configured to processes a first signal from a first sensor of the array of sensors and to process a second signal from a second sensor of the array of sensors, and the controller is configured to determine a presence of an element in the partially transparent aerosol chamber based on the first signal, the second signal, or the first signal and the second signal [0020; 0032] (wherein the detected signal represents the presence of an element).
With regards to claim 19, D1 does not teach the claimed controller. However, D1 does discloses measuring particle characteristics to determine particle size variations (Claim 11). It would have been well known, obvious, and predictably suitable to one with ordinary skill in the art to modify D1 with the claimed controller in order to alert the user of detected particle sizes outside a given threshold.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARCUS H TANINGCO whose telephone number is (571)272-1848. The examiner can normally be reached Monday-Friday 9am-6pm EST.
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/MARCUS H TANINGCO/ Primary Examiner, Art Unit 2884
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