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 .
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).
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Claim 1 is rejected on the ground of nonstatutory obviousness-type double patenting as being anticipated by claim 1 of U.S. Patent No. 11,930,856.
Regarding independent claim 1 of the instant application, although the conflicting claim is not identical, the claims are not patentably distinct because application claim 1 is generic to all that is recited in patent claim 1; that is, the instant application claim is anticipated by the patent claim because it contains all the limitations of application claim 1, which is therefore an obvious variant thereof.
An illustration of the claim correspondence is as follows:
Instant Application
U.S. Patent No. 11,930,856
1. An electronic device, the electronic device comprising: a memory having stored thereon computer readable instructions; and processing circuitry configured to execute the computer readable instructions to cause the electronic device to, receive identity verification information from an adult vaper, determine a personal profile corresponding to the adult vaper based on the identity verification information, and enable operation of an electronic vaping device based on the received identity verification information and the personal profile.
1. An electronic device, the electronic device comprising: a memory having stored thereon computer readable instructions and a plurality of personal profiles, the plurality of personal profiles corresponding to a plurality of adult vapers; and processing circuitry configured to execute the computer readable instructions to cause the electronic device to, receive identity verification information from a first adult vaper, determine a first personal profile corresponding to the first adult vaper from the plurality of personal profiles based on the identity verification information, and enable operation of an electronic vaping device based on the received identity verification information and the first personal profile.
Claim 1 is rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1 and 15 of U.S. Patent No. 11,284,646.
Regarding independent claim 1 of the instant application, although the conflicting claims are not identical, the claims are not patentably distinct because application claim 1 is generic to all that is recited in patent claims 1 and 15; that is, the instant application claim is anticipated by the patent claims because they contain all the limitations of application claim 1, which is therefore an obvious variant thereof.
An illustration of the claim correspondence is as follows:
Instant Application
U.S. Patent No. 11,284,646
1. An electronic device, the electronic device comprising: a memory having stored thereon computer readable instructions; and processing circuitry configured to execute the computer readable instructions to cause the electronic device to, receive identity verification information from an adult vaper, determine a personal profile corresponding to the adult vaper based on the identity verification information, and enable operation of an electronic vaping device based on the received identity verification information and the personal profile.
1. A device for generating a vaping simulation, the device comprising: a memory having stored thereon computer readable instructions; and at least one processor configured to execute the computer readable instructions to, receive audio signals related to vaping of an e-vaping device by an adult vaper from a microphone, determine vaping characteristics of the vaping based on the received audio signals and a plurality of audio spectrums associated with the adult vaper, the determining including, generating an audio spectrum of the received audio signals, normalizing the audio spectrum of the received audio signals, correlating the normalized audio spectrum to at least one template audio spectrum of the plurality of audio spectrums associated with the adult vaper, and determining the vaping characteristics of the vaping based on the correlated normalized audio spectrum, generate a vaping simulation based on the determined vaping characteristics, and transmit the generated vaping simulation to a headset to be displayed on a display panel included in the headset.15. The device of claim 1, further comprising: a camera configured to obtain an image of the adult vaper; and wherein the at least one processor is further configured to execute the computer readable instructions to, receive the image of the adult vaper from the camera, determine an identity of the adult vaper based on the received image, and load personalized vaping parameters based on the determined identity.
Claim Objections
Claims 10 and 20 are objected to because of a minor informality that appears to be typographical in nature. In particular, each of these claims recites generating an audio signature “based on the filtered audio spectrum.” This phrase does not have antecedent basis in the claims, although the Examiner can understand the intention, meaning, and scope of these claims. Claims 10 and 20 should be amended to recite dependence from claims 9 and 19, respectively, which provide antecedent basis for the limitations. For the purposes of examination, they will treated as such in the Office Action. Appropriate correction is required.
Claim Rejections - 35 USC § 102
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)(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 1-7 and 11-17 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Popplewell et al. (U.S. Patent Application Publication No. 2018/0263283), referred herein as Popplewell.
Regarding claim 1, Popplewell teaches an electronic device (fig 3, device 72), the electronic device comprising: a memory having stored thereon computer readable instructions, and processing circuitry configured to execute the computer readable instructions to cause the electronic device to (paragraph 73, lines 8-13; paragraph 77, lines 1-6),
receive identity verification information from an adult vaper (paragraph 29, lines 1-12; paragraph 60; paragraph 79, lines 1-16; when an adult vaper wants to use the vape device, they must verify their identity through the electronic device),
determine a personal profile corresponding to the adult vaper based on the identity verification information (paragraph 79, lines 1-23; paragraph 80; the profile for the person is retrieved based on the identity verification, and may include, for example, user information, prescription information, location and payload information, and a number of other parameters), and
enable operation of an electronic vaping device based on the received identity verification information and the personal profile (paragraph 79, lines 9-23; paragraph 82; when identity is verified, the electronic device enables operation of the vape device, and the profile information is used to control operational settings of the vape device).
Regarding claim 2, Popplewell teaches the electronic device of claim 1, wherein the electronic device is further caused to: verify an identity of the adult vaper based on the received identity verification information, and in response to the verification of the identity of the adult vaper being successful, log into the determined personal profile corresponding to the adult vaper (paragraph 79, lines 1-23 and the last 10 lines; paragraph 80).
Regarding claim 3, Popplewell teaches the electronic device of claim 2, wherein the electronic device is further caused to: in response to the verification of the identity of the adult vaper being successful, enable the operation of the electronic vaping device, and in response to the verification of the identity of the adult vaper being unsuccessful, disable the operation of the electronic vaping (paragraph 79, lines 1-23 and the last 10 lines; paragraph 87, lines 1-12).
Regarding claim 4, Popplewell teaches the electronic device of claim 2, wherein the device is further caused to verify the identity of the adult vaper by: determining an age of the adult vaper using the personal profile, and determining whether the adult vaper is legally permitted to operate the electronic vaping device based on the determined age of the adult vaper (paragraph 29, lines 1-12; paragraph 79, lines 1-23; paragraphs 81 and 82; paragraph 87, lines 1-12).
Regarding claim 5, Popplewell teaches the electronic device of claim 1, wherein the identity verification information includes at least one of: login information corresponding to the adult vaper, a PIN code corresponding to the adult vaper, biometric information corresponding to the adult vaper, or any combinations thereof (paragraph 79, lines 1-16).
Regarding claim 6, Popplewell teaches the electronic device of claim 1, wherein the device is further caused to: receive the identity verification information from at least one of a camera, a microphone, a finger print scanner, or any combinations thereof (paragraph 29, lines 1-12; paragraph 79, lines 1-16).
Regarding claim 7, Popplewell teaches the electronic device of claim 1, wherein the personal profile includes: at least one recording of at least one vaping session of the adult vaper (paragraph 49; paragraph 80, lines 1-5).
Regarding claims 11-17, the limitations of these claims substantially correspond to the limitations of claims 1-7, respectively; thus they are rejected on similar grounds as their corresponding claims.
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.
Claims 8-10 and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Popplewell, in view of Petrank (U.S. Patent Application Publication No. 2017/0347180), referred herein as Petrank.
Regarding claim 8, Popplewell teaches the electronic device of claim 7, but does not explicitly teach that the electronic device is further caused to: generate an audio spectrum based on the at least one recording.
However, in a similar field of endeavor, Patrank teaches an electronic device comprising processing circuitry configured to receive identity verification information from a user, determine a personal profile for the user based on the verification, and enable operation of the device based on the profile and verification, wherein the personal profile includes at least one recording of a session of the user (paragraphs 24 and 25; paragraph 65, lines 1-10; paragraph 66, lines 1-9; paragraphs 67 and 69), wherein the electronic device is further caused to generate an audio spectrum based on the at least one recording (paragraph 47, lines 13-23; paragraph 52, the last 6 lines; paragraph 65, lines 1-10; paragraph 72; paragraph 169).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the audio spectrum of Petrank with the device identity verification of Popplewell because this can help identify a particular user and further personalize the use of the device using a unique audio spectrum associated with a user – akin to a fingerprint – thus improving the security and usability of the personal device (see, for example, Petrank, paragraph 59; paragraph 75, lines 1-16 and 20-32).
Regarding claim 9, Popplewell in view of Petrank teaches the electronic device of claim 8, wherein the electronic device is further caused to: remove ambient noises from the audio spectrum by filtering the audio spectrum (Petrank, paragraph 47, lines 13-23; paragraph 86, lines 1-8 and the last 7 lines; paragraph 88, lines 8-15 and 27-29; paragraph 168, the last 6 lines; the motivation to combine is similar to that discussed above in the rejection of claim 8).
Regarding claim 10, Popplewell in view of Petrank teaches the electronic device of claim [[7]] 9, wherein the electronic device is further caused to: generate an audio signature corresponding to the adult vaper based on the filtered audio spectrum (Popplewell, paragraph 29, lines 1-12; paragraph 79, lines 1-16; Petrank, paragraph 59; paragraph 67; paragraph 75, lines 1-17; the motivation to combine is similar to that discussed above in the rejection of claim 8).
Regarding claims 18-20, the limitations of these claims substantially correspond to the limitations of claims 8-10, respectively; thus they are rejected on similar grounds as their corresponding claims.
Response to Arguments
On page 7 of the Applicant’s Remarks, with respect to the double patenting rejections, the Applicant requests that these rejections be held in abeyance. Accordingly, these rejections are respectfully maintained.
On pages 8 and 9 of the Applicant’s Remarks, with respect to the 102 rejection of claim 1, the Applicant argues that Popplewell does not teach the “determine” and “enable” limitations because Popplewell does not disclose a personal profile based on identity verification information, and instead, discloses a payload identifier to determine operational settings and secondary data. The Examiner respectfully disagrees with this argument.
As shown in the citations, Popplewell discloses that a user may verify his/her identity through various security means of the device. This verification information is
used to permit operational access to an ID tag of the vape device, which may store and transmit a payload identifier and secondary data comprising personal profile information. Thus, determining the personal profile is “based on” the identity verification information. The personal profile information, in turn, allows personal operation of the vaping device. Thus, enabling operation is “based on” the identity verification and the personal profile. The Examiner respectfully submits that this explicitly teaches the broad language of the claim. To the extent that there are differences between the claimed “identity verification information” and that disclosed in Popplewell, any such differences are not currently reflected in the claims. Accordingly, the 102 rejection is respectfully maintained.
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 DAVID T WELCH whose telephone number is (571)270-5364. The examiner can normally be reached Monday-Thursday, 8:30-5:30 EST, and alternate Fridays, 9:00-2:30 EST.
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DAVID T. WELCH
Primary Examiner
Art Unit 2613
/DAVID T WELCH/Primary Examiner, Art Unit 2613