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 .
Claim Objections
Claims 9-12 are objected to because:
Claims 9-11 recite “The aerosol generating device of Claim 7.” Claim 7 is a method claim , so it is unclear whether the claims 9-11 are intended to be method or apparatus claims.
Claim 12 recites “The aerosol generating device of Claim 8.” Claim 8 is a method claim , so it is unclear whether claim 12 is intended to be a method or apparatus claim.
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 and 9 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 limitation “each predetermined time interval” in line 2. There is a lack of antecedent for this limitation in the claim.
Claim 9 recites the limitation “each predetermined time interval” in lines 3-4. There is a lack of antecedent for this limitation in the claim.
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.
Claims 1-4, 6-10 and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Yamada et al (US 2017/0042251).
Claims 1-4 and 7-10: Yamada et al discloses a non-burning type flavor inhaler (aerosol generating device) including a first unit comprising an electrical unit, a second unit comprising an aerosol generating source, and a heat source (heater) for heating the aerosol including source (aerosol generating material) (Abs., [0004],[0147]), and a control unit or control circuit (controller) configured to implement a method to control a heating operation by controlling the amount of electric power supplied from a power source to the heat source [0147].
in a first embodiment of the method, a required amount of electric power is defined as a cumulative value of the amount of electric power to be supplied to the heat source in a one-time puff action series (which is a series of actions in which the puff action is repeated a predetermined number of times) and is set beforehand or arbitrarily by the user ([0107], [0147]). The required amount of electric power corresponds to the claimed preset reference power amount.
In a startup process, the control circuit, or controller executes the process described hereinafter. Starting a heating operation of a heater that heats the aerosol generating source material would have been obvious. The controller integrates (calculates) a first cumulative amount of electric power as the result of multiplication of time and electric power (voltage or current), which is a cumulative value of the amount of electric power supplied to the heat source in a one-time puff action series, and notifies the end of the one-time puff action series when the first cumulative amount of electric power reaches the required amount of electric power ([0015], [0147]-[0149]). In standard mode, the one-time puff action series has a defined time period (standard required time duration) for heating ([0107], [0138]-[0140], Figs. 8 and 9). Including heat-up time when there is no puff with time when there is a predetermined number of puffs would have been obvious to determine a (preset first time period after a heating operation of the heater is started.
In the first embodiment, based on when the first cumulative amount of power equals the reference power amount, one optional action the controller takes to control the heating operation is to stop the supply of electric power to the heater and terminate the heating operation [0149]. .The one-time puff action series also corresponds to the end of the preset first time period ([0141], Fig. 8). In the first embodiment, while the first cumulative amount of power is less than the reference power amount, while there is a difference between the first cumulative amount of power and the reference power amount, the controller continues to control the heating operation at the puff temperature during a puff or at a lower temperature after the puff ([0140], [0150]).
Regarding Claims 3 and 9, calculating the accumulated power amount by adding up the power amounts used by the heater at successive time intervals is the mathematical description of integration and necessarily requires checking the power amount during each predetermined time interval. The disclosed process integrates a first cumulative amount of electric power which is a cumulative value of the amount of electric power supplied to the heat source in the one-time puff action series [0015].
Claims 6 and 12: Yamada et al discloses that by learning the required time of a one-time puff action in the first n-time puff actions in a one-time puff action series, the standard mode or the shortened mode may be set for the n+1 (or, n+2)th puff action or thereafter [0115]. The controller therefore updates the required time, and hence the required amount of electric power based on smoking pattern data acquired as a user uses the aerosol generating device.
Claim 13: A non-transitory computer-readable recording medium having recorded thereon a program for executing each process performed by the controller is disclosed [0232].
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 1, 4-7 and 10-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim Claims 1-4, 6-10 and 12-13 of U.S. Patent No. 11/11,957,179. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the Patent recite the limitations of the instant claims, although in different combinations, and it would have been obvious to one of ordinary skill in the art to modify the claims of the patent to obtain the instant claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DENNIS R CORDRAY whose telephone number is (571)272-8244. The examiner can normally be reached Monday-Friday 8 AM-5 PM (EST).
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/DENNIS R CORDRAY/Primary Examiner, Art Unit 1748