DETAILED ACTION
This action is responsive to the Applicant’s response filed 12/15/25.
As indicated in Applicant’s response, claims 1 have been amended, claims 3-4, 8-9, 13-16 cancelled and claims 18-19 added. Claims 1-2, 5-7, 10-12, 17-19 are herein pending a next office action.
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 1-2, 12, 18-19 is/are rejected under § 35 U.S.C. 103 as being unpatentable over Alarcon, USPubN: 2018/0020724 (herein Alarcon) in view of Fernando et al, USPubN: 2018/0107989 (herein Fernando), Schweitzer et al, USPubN: 2007/0268644 (herein Schweitzer) and Sigal et al, USPubN: 2014/0028449 (herein Sigal) further in view of Sherman et al, USPubN: 2009/0083060(herein Sherman) and Daley et al, USPubN: 2007/0207800 (herein Daley)
As per claims 1-2, Alarcon discloses a computer implemented method for updating firmware of a smoking substitute device, the method comprising the steps of:
connecting a mobile device (the e-cigarette may be connected directly to the processor 42B - para 0029; the processor comprises at least one of ... mobile device - para 0039; para 0047; processor
42 can be ... a mobile device, a smart phone - para 0024) to the smoking substitute device;
selecting, based on recorded usage data (e.g. record indicates that a particular device requires
... update - para 0031) by the smoking substitute device, an updated firmware for use by a
processor (provide the firmware update to the processor 42B- para 0031; para 0034; para 0046; para
0070; connects their e-cigarette to the processor 42B directly ... the firmware can be updated from
a processor - para 0031) in the smoking substitute device (e.g. to a processor configured to
communicate with the electronic smoking device - para 0046);
transmitting, from the mobile device (para 0047) to the smoking substitute device, the updated firmware (provide update to the processor based on user record, processor ... configured to
transmit the firmware update to the electronic smoking device - para 0034; the processor comprises
at least one of ... mobile device - para 0039); and
updating the firmware of the smoking substitute device (user connects their e-cigarette to the
processor 42B directly ... the firmware can be updated ... obtain a firmware update ... directly
from a processor - para 0031) with the updated firmware received from the mobile device (see
above).
Alarcon does not explicitly disclose
(i) logging, by the smoking substitute device, one or more errors encountered by the smoking substitute device; wherein the errors are logged by the smoking substitute device into memory of the smoking substitute device; and (ii) transmitting the one or more errors to a mobile device
As for (i)
Logging of errors or failure incidents associated with usage or operating a smoking device by a user is shown in Fernando method of reporting of usage errors destined for registered mobile users via actions of a diagnostic machine in connection with the mobile user (para 0052, para 0113), the mobile user interacting with the diagnostic unit to obtain and display results of the diagnostic or report (Fig. 4) regarding faults (para 0114) associated with using the smoking device vending apparatus (para 0109), the report (para 0125; para 0108) being displayed in conjunction with the user (para 0115) considering options such as to which parts of the smoking device in need for repair, or replacement (software update – para 0112, 0117). Hence logging of malfunctions by way of test and transmitting to a mobile user, test reports indicative of errors (malfunctions - para 0125) pertinent to using/operating a smoking device by the user which entails transmitting logged errors in using a smoking device to a mobile user UI for user consideration of replacement or update, on basis of logged information in memory of electronic apparatus at which the usage data were initially recorded.
Hence, logging of smoking devices usage data indicative of faults or errors identifiable by a diagnosis device in connection with a mobile device for the mobile device to take/consider corrective measure to remedy to failure of a software in the smoking machine is recognized.
As for (ii)
Receiving of field device information to be assessed by a mobile/wireless terminal/device equipped with GUI in connection to RF diagnostic means is shown in Schweitzer (Fig. 3) according to which, field devices and circuitries as subjected to listening by the diagnostic means so that signals indicative of (para 0061-0062; faulty circuit indicators – para 0064) faults from field devices or circuitries (para 0073-0074) are obtained in the mobile terminal under a diagnostic mode requested of the RF unit so that the mobile unit can display status of the faulty circuitries and obtain firmware update option from the RF unit (para 0180) as return to a request command associated with the diagnostic mode.
Hence, information sent from monitored field devices for fault determination by a diagnostic means attached to a mobile terminal for the latter to display indication of the faults as well as consider firmware selection based on returned information (to a request) per effect of a diagnostic mode entails sending of one or more errors to a mobile device as result from listening to fault information or signals obtained from monitored devices.
Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the invention to implement identification of faults and determination of firmware update associated therewith in Alarcon so that the update responsive to usage faults determination is driven from information captured from using the smoking devices, including
1) logging, by the smoking substitute device, one or more errors encountered by the smoking substitute device; wherein the errors are logged – as per the logging by Fernando - by the smoking substitute device into memory of the smoking substitute device; and
2) transmitting the one or more errors to a mobile device – as per diagnostic mode receiving of fault indicators in Sweitzer; because
usage data recorded, logged and captured in memory of field devices or smoking devices can be formatted for transmission to external entities that are better equipped with diagnostic capabilities thereby signals or data indicative of a deficient usage or operational fault can be identified and assessed properly by the better equipped external device – as shown in the teaching by Sweitzer – whereby consideration for remedial/repair action (software update/replacement) can be subjected to a mobile user for a decision as set forth with Fernando on basis of the external device performing a diagnostic upon request of the mobile user, notably based on integral communication between a diagnostic entity means and the user mobile terminal UI, which combines role of user using wireless communication with diagnostics capability integrated with the same NW communication in which the user renders a decision for update responsive to diagnosed target devices.
Nor does Alarcon explicitly disclose
(i) the mobile device assessing the one or more errors encountered by the smoking substitute device; and (ii) the mobile device selecting, from a store of multiple items of firmware, based on an assessment the assessing performed by the mobile device of the one or more errors encountered by the smoking substitute device, an updated firmware for use by a processor in the smoking substitute device.
As for (i)
Assessment being performed in regard to detection of the one or more errors encountered by the smoking substitute device, in that identification of an updated firmware is part of considering dispatch (e.g. connects their e-cigarette to the processor 42B directly ... the firmware can be updated from a processor - para 0031) of update action is disclosed in Alarcon – referred herein as (*).
Fernando discloses role of a mobile user (para 0015, 0115) made to assess extend of the faults regarding usage of smoking devices in terms of decision made by a user in response to options, report ( Fig. 4; software update – para 0112, 0115, 0117) received from a diagnostic means directly accessible to the user, the user action including connecting to the faulty device (para 0109) to enable repair or update. Hence, assessment of returned diagnostic report in terms of using a mobile user/platform in deciding to connect and update a faulty device with software is recognized.
As for (ii)
Sigal discloses cellular/bluetooth-based operating a service of diagnosis using commands of a mobile user's smartphone (step 106-108- Figure 2; para 0015) or lookup from faults, error codes from history (para 0016-0017) to detect patterns of failure and determination of malfunction-related firmware updates (para 0020-0021) for the personal appliance; hence selecting of applicable firmware(s), from a store of the multiple items of firmware, based on an diagnosis assessment, performed by the mobile device operator, of the one or more errors, malfunctions encountered with utilization of a personal electronic device/appliance is recognized.
Sherman discloses server-side support of subscribers in mobile communication NW (para 0047-0049) in providing for updating software and firmware versions (para 0135-0136), where updated versions thereof can be remotely accessed in response to reports (para 0007-0009) about consumer electronic devices, the provision of SW, FW update including collecting information related to consumer electronic (CE) devices such as identified versions of SW/FW to install and defined settings (para 0138-0139) for the CEs, e.g. based on navigating log (Fig. 8) of the history update servers. Hence, server side storing of firmware update accessible as plurality of versions for updating consumer electronic devices is recognized.
Therefore, based on the teachings Fernando and Schweitzer from above, it would have been obvious for one of ordinary skill in the art before the effective filing date of the invention to implement use of mobile user and transmission of usage report or logged operations for software update to be determined in Alarcon – see (*) - so that
1) assessing by a mobile device – per Fernando and Sigal - is based on the one or more errors encountered by the smoking substitute device;
2) the mobile device supports providing the user with selecting options, based on an assessment the assessing performed by the mobile device – as set forth in Fernando, Sigal - of the one or more errors encountered by the smoking substitute device, regarding an updated firmware for use by a processor in the smoking substitute device, the update firmware provided from a store of multiple items of firmware – as shown in Sigal and Sherman; because
combining role and decision making of an user or operator of a mobile platform with diagnostic entity in direct connection to the mobile device and target electronic devices whose operations are reported/logged and diagnosed under the update paradigm and support by a remote entity/store capable of providing software update accessible in plurality of instances or versions would enhance/facilitate likelihood of a mobile user being directly, via a wireless communication paradigm, apprised of failure or extent of the fault being passed in real-time from diagnose of reported data, enabling thereby user decision making and assessment of the course of remedial action to take, including opting for a software update on basis of one among the plurality of instances provided from the external store – one selected from plurality of firmware versions – in order for SW upgrade action to be deployed or initiated timely in response to the level or specificity of the fault being diagnosed in relation to the state of information collected from the electronic device to which SW upgrade or repair representing but one possible version (among other plurality thereof) is adopted/taken by choice or assessment of mobile user.
C) Alarcon does not explicitly disclose method of claim 1, wherein the errors are logged by the smoking substitute device into memory of the smoking substitute device.
Daley discloses personal electronic device in form of mobile device within a cellular communication network to collect logged data such as diagnostic type information (para 0009, 0040) monitored from the very device in accordance to effect of provisioning "in the field" firmware and/or software therefor via the device attached agents -- client-side diagnostic/update agent (para 0039-0040; Fig. 1) - working in connection with (para 0032-0033) a download management server, where logged diagnostic data can be pushed to a management server (para 0048-0055) according to diagnosis or tracing setting by the server, the logged data including conditions meeting some criteria, errors, faults encountered while the electronic device is in operation (para 0041) in form of reports or traps set (para 0041, 0044) from a diagnostic agent on issues such as SW/firmware malfunction or crash, or a log file (para 0044, 0054) storing error codes encountered in tracing software and/or firmware operation of the portable electronic device (para 0060) - the logger conveying fault messages indicative of a update time (para 0289), and enabling categorization of diagnostic data (para 0063; Fig. 3) and determination on severity levels of the problems (para 0138-139) by which to update functionality of the handheld electronic device (update ... both of firmware and software - para 0306-0307) via download (para 0309).
That is, logging of errors, faults as a log file as set forth in Daley reporting errors on operational state of on-the-field/mobile devices via use the very device-hosted agents entails that logged errors or faults are structured in memory - via trap set by diagnostic agents - on said targeted devices; hence use of a logger SW logged by the smoking substitute device to log information or usage data into memory of the smoking substitute device would have been obvious.
Thus, based on similar use of mobile platform to collect diagnosed usage information and determine based thereon, which corrective measure or FW update to apply to a device under diagnostic as set forth in Sigal in form of using commands of a mobile user's smartphone (step 106-108 - Figure 2; para 0015) to diagnose, detect patterns of failure and effecting determination of firmware updates (Sigal: para 0020-0021), it would have been obvious for one of ordinary skill in the art before the effective filing date of the invention to implement logging of malfunctions or errors incurred with operating a field device or personal electronic device as set forth in Alarcon firmware provision for substitute smoking devices, so that errors are logged by the smoking substitute device into memory of the smoking substitute device - as set forth via use of portable device hosted agents in Day from above; because
this logged information when fetched from internal agent - as in Day - attached to memory of a target personal electronic device for transmission of the collected errors, operational issues incurred during operation of the device- e.g. a personal smoking substitute device - is destined for subsequent evaluation at an external device - using a mobile platform in Sigal - configured in the same NW for malfunction or error pattern assessment, and this memory based collecting of data would enable collected information internal to runtime memory the target device to be structured in accordance with transmission format and protocol setting compliant with the type of network (cellular, wireless, Bluetooth) in which both the target device and the external evaluation device operate, for immediate collection at a diagnostic environment such as using a mobile terminal -as in Sigal - thereby taking advantage from fast processing capability and high communicative features by this user-friendly platform - mobile terminal such as in Sigal - to render prompt assessment decision or identification
of proper/specific SW solution to resolve any identified operational errors incurred, tracked and logged by the target device.
As per claim 12, Alarcon discloses a smoking substitute device, comprising: a processor (processor 42A, 42B - Fig. 3; para 0039); and a memory, wherein the memory includes instructions which cause the processor to:
log one or more error(s) encountered by the smoking substitute device (refer to rationale C of claim 1);
receive from the mobile device an updated firmware for use by the processor of the smoking
substitute device, where the updated firmware is selected based on the one or more error(s) encountered by the smoking substitute device; and
update firmware of the smoking substitute device with the updated firmware received from the mobile device
(all of which having been addressed in claim 1)
Alarcon does not explicitly disclose processor configured to
transmit the one or more errors to a mobile device; receive from the mobile device an updated firmware for use by the processor, where the updated firmware is selected by the mobile device.
Obviousness of transmitting errors to a mobile device has been set forth with rationale A in claim 1.
Obviousness of an update firmware (received from) and selected by the mobile device in response to receiving fault indicators from monitoring and diagnose of smoking device usage or operations has been set forth with rationale B in claim 1.
As per claim 18, Alarcon discloses method of claim 1, wherein the updated firmware is selected from the multiple items of firmware (refer to rationale B(ii) of claim 1) so as to address the one or more errors encountered (refer to claim 1) by the smoking substitute device.
As per claim 19, Alarcon discloses a computer implemented method for updating firmware of a smoking substitute device, the method comprising the steps of:
logging, by the smoking substitute device, one or more errors encountered by the smoking substitute device;
assessing, by the mobile device, the one or more errors encountered by the smoking substitute device to thereby ascribe a fault in the smoking substitute device to the one or more errors;
the mobile device selecting, from a store of multiple items of firmware, based on the assessing performed by the mobile device of the one or more errors encountered by the smoking substitute device, an updated firmware for use by a processor in the smoking substitute device to address the fault;
transmitting, from the mobile device to the smoking substitute device, the updated firmware; and
updating the firmware of the smoking substitute device with the updated firmware received from the mobile device.
(all of which having been addressed in claim 1)
Claims 5-6, 17 is/are rejected under § 35 U.S.C. 103 as being unpatentable over Alarcon,
USPubN: 2018/0020724 (herein Alarcon) in view of Fernando et al, USPubN: 2018/0107989 (herein
Fernando), Schweitzer et al, USPubN: 2007/0268644 (herein Schweitzer) and Sigal et al, USPubN: 2014/0028449 (herein Sigal) further in view of Sherman et al, USPubN: 2009/0083060 (herein Sherman) and Daley et al, USPubN: 2007/0207800 (herein Daley) and further of Dicks et al, USPubN: 2011/0167250 (herein Dicks) and Yu Bin, CN 103529988 (translation), 03-29-2017, 8 pgs (herein Yu)
As per claims 5-6, Alarcon does not explicitly disclose method of claim 1,
wherein the mobile device selects the updated firmware from a store of firmware stored in memory of the mobile device;
wherein the store of firmware stored in the memory of the mobile device is periodically updated by a remote server.
Firmware records made available to support update of the electronic smoking device in Alarcon pertains to a database of firmware (para 0034); and this entails that firmware can be fetched from a remote repository of FW instances; although the user be provided with a firmware directly from the attached processor (user can obtain a firmware update ... directly from a processor - para 0031) to the smoking device. Thus, provision of firmware can be from a local memory store on the attached processor or from a remote DB.
Firmware storing existing in plural instances for accessibility to SW upgrade is shown in the server upgrade support by Sherman in response to reports (para 0135-0136).
Yu discloses a mobile terminal configured to store application classification table for use in selecting application and needed firmware thereof (pg. 5), the selection made interactive via a touchscreen with support of operation classification based thereon, the touchscreen double-click selection realized with provision of plurality of firmware stored on the mobile terminal (pg. 4) so to appoint a corresponding firmware for each type of application via the screen operation classification (pg. 6) coupled with selected information saved with the classification table obtained from a server through a network (pg. 6) to which the electronic terminal is connected.
Firmware version maintenance for provisioning to electronic devices is shown in Dicks (para 0294) where in response to inquiry for latest firmware update by a remote device, a firmware database associated with the periodical request paradigm, provides a response indicating that based on code supplied from the device, the firmware for the device is out-of-date and that a new update version can be transmitted (para 0299); hence maintenance of firmware at a remote server (server's database - para 0296) so to suggest the most up-to-date firmware version to a inquiring device entails continuous or (at least) periodical firmware update or version re-adjusting at the database of the server.
Thus, based on provision of user record and registration e-cigarette information (para 0026-0030) being originated from a remote server or database in Alarcon and that firmware can be stored locally for the user to implement update (para 0031), it would have been obvious at the time of the effective filing date of the invention for one of ordinary skill in the art to implement use of a mobile device in connection with the smoking device in Alarcon so that registration data is provided as remote database or store service – as in Sherman - that remotely maintains firmware update or plurality thereof and provides local update information to the mobile device, according to which the mobile user can fetch - as in Yu – from remote an update instance to be received into a local memory (of the mobile device) for the purpose of delivering by the mobile device firmware update to the smoking device or e-cigarette device, where the firmware information being transmitted to the mobile device is also maintained and at least periodically updated by a remote server - as in Dicks; because
provision of a plurality of firmware versions in a local store of a mobile device would benefit from the interactive feature of a mobile platform and enhance or facilitate interactive role of a mobile user in assessing state of stored software; e.g. to select of proper versions for delivery from the mobile application to the target electronic device (e-cigarette in Alarcon) ; whereas support of software update per effect of a remote server's database would most likely guarantee that latest firmware is recorded, acquired and accordingly integrated as updated records by the database management software, thus consolidating usefulness of the stored assets thereby to support inquiry on availability of latest SW update from client device applications, or subscriber or consumers' associated product, thereby improving the Quality of Service of the update architecture for which the firmware database operates as a backend service.
As per claim 17, Alarcon discloses method of claim 1, wherein the mobile device selects the updated firmware from a store of firmware stored in memory of a remote server.
(refer to rationale addressing claim 5)
Claims 7 is/are rejected under § 35 U.S.C. 103 as being unpatentable over Alarcon, USPubN: 2018/0020724 (herein Alarcon) in view of Fernando et al, USPubN: 2018/0107989 (herein
Fernando), Schweitzer et al, USPubN: 2007/0268644 (herein Schweitzer) and Sigal et al, USPubN: 2014/0028449 (herein Sigal) further in view of Sherman et al, USPubN: 2009/0083060 (herein Sherman) and Daley et al, USPubN: 2007/0207800 (herein Daley) and further of Bowen et al, USPubN: 2018/0043114 (herein Bowen) and Dicks et al, USPubN: 2011/0167250 (herein Dicks)
As per claim 7, Alarcon does not explicitly disclose method of claim 1, wherein the logged errors are subsequently transmitted from the mobile device to a remote server to which the mobile device is connected.
Registration data being recorded to a remote database is shown in Alarcon (para 0027-0030) such as to support recording of usage data and user records, which can be used as customer support (para 0032), marketing and firmware update (para 0031, 0034) to the electronic smoking device.
Logged information being transferred via a mobile terminal to a remote server is shown in Bowen where vaporizer data is passed from a mobile device to server 307 (Fig. 3; para 0062); whereas the collected trace information per a diagnostic agent is also transferred from the electronic device to a management server as in Daley (para 0058; server 109, 129, 157 - Fig. 1)
Dicks discloses use of a server's database to support selective transmission of update to a intervening mobile terminal to provision for remote consumer device where new software or most up-to-date versions of firmware can be retrieved on a periodical basis in accordance with a FOTA process (para 0015; para 0296, 0299, 0301); hence transmission of firmware by a server in selecting the most appropriate versions from a plurality of firmware instances is recognized.
Therefore, it would have been obvious at the time of the effective filing date of the invention for one of ordinary skill in the art to implement provision of SW update per Alarcon' s use of mobile device for distributing firmware update so that smoking device's logged errors (per rationale A in claim 1) that are collected into a mobile device are subsequently transmitted from the mobile device to a remote server - as in Bowen and Daley - to which the mobile device is connected, the remote server configured accordingly to transmit the selected updated firmware to the mobile device; because
provision of a plurality of firmware updates from a server - as in Daley and Bowen - toa mobile device would benefit from the interactive feature of a mobile platform and enhance or facilitate interactive role of a mobile user in a) assessing state of stored software - to confirm on validity of an error and relevant function indicated in a received log file as in Daley - b) determining a proper update version for delivery (from the mobile application) or c) downloading from the server to correct a given function of the target electronic device (e-cigarette in Alarcon); whereas support of software update per effect of having a remote server in connection with the mobile user would benefit from a continual management software on the server to keep records up-to-date, including analytics by the server platform in identifying severity of a failure from the logged data and selecting a most optimum update to be transferred to the mobile device, which would expedite realization of a corrective support by a remote server and otherwise would alleviate strain on NW bandwidth and OTA transmission resources by which the server and mobile device are attached for provisioning the smoking device; i.e. when the most correctly chosen update version has been identified for transfer via FOTA.
Claims 10 is/are rejected under § 35 U.S.C. 103 as being unpatentable over Alarcon, USPubN: 2018/0020724 (herein Alarcon) in view of Fernando et al, USPubN: 2018/0107989 (herein Fernando), Schweitzer et al, USPubN: 2007/0268644 (herein Schweitzer) and Sigal et al, USPubN: 2014/0028449 (herein Sigal) further in view of Sherman et al, USPubN: 2009/0083060 (herein Sherman) and Daley et al, USPubN: 2007/0207800 (herein Daley) and further of Marino et al, USPubN: 2013/0013907 (herein Marino)
As per claim 10, Alarcon does not explicitly disclose method of claim 1, wherein updating the firmware of the smoking substitute device includes overwriting a firmware-storing portion of memory of the smoking substitute device with the updated firmware.
Marino discloses firmware update carried out with destructively overwriting flash memory chunks associated with a first version of the firmware prior to the all the actual chunks being
overwritten with the second version of software to complete the update (para 0029; claim 1, pg 13;
para 0151)
Therefore, it would have been obvious at the time of the effective filing date of the invention for one of ordinary skill in the art to implement firmware update on a smoking device in Alarcon so
that the updating includes overwriting a firmware-storing portion of memory of the smoking
substitute device with the updated firmware - as shown in Marino; because
effect of overwriting of certain memory portions currently containing a previous software so to progressively replacing these portions of memory with a new software would proffer a clear substitution of firmware where information indicative of latest memory changes caused by the
overwrite can serve as setting for use in the subsequent reboot process whereby correct memory
addresses pointing by the setting would enable known system activation of the firmware to be finally
consummated or put into effect.
Claims 11 is/are rejected under § 35 U.S.C. 103 as being unpatentable over Alarcon, USPubN: 2018/0020724 (herein Alarcon) in view of Fernando et al, USPubN: 2018/0107989 (herein Fernando), Schweitzer et al, USPubN: 2007/0268644 (herein Schweitzer) and Sigal et al, USPubN: 2014/0028449 (herein Sigal) further in view of Sherman et al, USPubN: 2009/0083060 (herein Sherman) and Daley et al, USPubN: 2007/0207800 (herein Daley) and further of Bowen et al, USPubN: 2018/0043114 (herein Bowen)
As per claim 11, Alarcon does not explicitly disclose method of claim 1, wherein the one or more errors includes any one or more of:
a measurement of the voltage of a battery in the smoking substitute device; a measurement of the resistance of a coil in the smoking substitute device;
an indication of the number chimes a consumable is inserted into the smoking substitute device within a given period;
an indication of the number of times that the smoking substitute device has failed to connect to a mobile device within a given period;
an indication that there is an issue with charging a battery within the smoking substitute device; and
an indication that a pressure within the smoking substitute device has dropped.
However, Bowen discloses a circuit having pressure sensor (para 0090, 0096) indicative of a user drawing from the vaporizer (para 0100) to provision a microcontroller with signal on resistive
heater coil thereby to provide resistive heater and activate warmer heat in operating a vaporizer
system which utilizes vaporizable material from a tobacco-based material (para 0233); hence
detection of insufficient pressure as signal of "error" value indicative of difference in power
respective to a desired Setpoint (para 0082, 0089) for the microcontroller to activate heater coil
with more energy (power to be applied to the coil - para 0093) entails that a drop in pressure
inside the vaporizer can cause a microcontroller action to pump more heater coil energy to improve
vaporizer intended use. Hence, error signaling pressure drop or insufficient resistance in coil is
recognized.
Further in Bowen, fully or partially charge state of battery can be cause for a vaporizer alert or notifications to be issued (para 0130) in order for corrective measure to be taken for implementing
a recharge to remedy to the vaporizer situation; hence error due to insufficient battery voltage is
recognized.
Therefore, it would have been obvious at the time of the effective filing date of the invention for one of ordinary skill in the art to implement alert setting in Alarcon so that measurement and
sensor setting associated with operation of the smoking device include notification settings
regarding
1) indication that a pressure within the smoking substitute device has dropped;
2) measurement of the resistance of a coil in the smoking substitute device; and
3) measurement of the voltage of a battery in the smoking substitute device, all of which shown in Bowen measurement from above; because
proper operation of a smoking device relies of heat and coil resistance and measured value of
pressure and coil resistance can serve as a signal to possible deficiency by the device in support
of proper vaporizer stream, and deficiency in battery charge can also be indicative of a lack of
energy to actuate electrical bias to the heater element underlying provision of the vaporizer
subsystem associated in vaporizing or inhaling functionality of a e-cigarette or vaping device
endeavored in Alarcon system.
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. See 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);and, 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) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent is shown to be commonly owned with this application. See 37 CFR 1.130(b).
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1, 12, 19 are provisionally rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1, 5 of U.S. Patent No. 11,989,756 (hereinafter ‘756) in view of Fernando USPubN: 2018/0107989 and Schweitzer et al, USPubN: 2007/0268644.
Although the conflicting claims are not identical, they are not patentably distinct from each other because of the following observations. Following are but a few examples as to how the certain claims from the instant invention and from the above copending application are conflicting with each other.
Instant claim 1 ‘756 claim 1
method for updating firmware of a smoking substitute device, comprising the steps of:
logging one or more errors encountered by the smoking substitute device; transmitting the one or more errors to
a mobile device, wherein the mobile device is connected to the smoking substitute device
method for updating firmware of a smoking substitute device, the method comprising the steps of:
logging one or more errors encountered by the smoking substitute device; transmitting the one or more errors to the mobile device, wherein the mobile device is connected to the smoking substitute device;
the mobile device assessing the one or more errors encountered by the smoking substitute device, and selecting, from a store of firmware of items of firmware, based on the assessing performed by the mobile device, an updated firmware for use by a processor in the smoking substitute device;
(refer to obviousness for a 103 rationale from below)
selecting, from a store of firmware stored in a memory of the remote server, an updated firmware for use by a
processor in the smoking substitute device.
(refer to obviousness for a 103 rationale from
below)
transmitting, from the mobile device to the smoking
substitute device, the updated firmware; and
transmitting, from the mobile device to the smoking substitute device, the updated firmware; and
updating the firmware of the smoking substitute device with the updated firmware received from the mobile device
updating the firmware of the smoking substitute device with the updated firmware received from the mobile device.
Obviousness 103 Rationale:
'756 claim 1 does not recite "selecting an update firmware" for use by a processor in the smoking
substitute device, in terms of: “a mobile device assessing the one or more errors encountered by the smoking device”, “the mobile device selecting based on an assessment, an update firmware” (for use by the processor in the smoking device).
Fernando discloses reporting of usage errors associated with smoking devices dispatching machine/apparatus as information destined for registered mobile users to make decision via results from an attached a diagnostic unit in connection with the mobile user (para 0052, para 0113), the mobile user interacting with the diagnostic unit to obtain displayed results of the diagnostic or report (Fig. 4) regarding faults (para 0114) in using the smoking device (para 0109), the report (para 0125; para 0108) being displayed on the GUI of the user (para 0115) to consider options such as to which parts of the smoking device in need for repair, or replacement (software update – para 0112, 0117), and this depicts role of a mobile user (para 0015, 0115) made to assess extend of the faults regarding usage of smoking devices in terms of decision made by a user in response to options, report ( Fig. 4; software update – para 0112, 0115, 0117) received from a diagnostic means directly accessible to the user, the user action including connecting to the faulty device (para 0109) to enable repair or update.
Schweitzer discloses information sent from monitored field devices (para 0073-0074) for fault determination by a diagnostic means attached to a mobile terminal for the latter to display indication of the faults (para 0062-0063) as well as firmware selection (para 0180) as returned information to a request per effect of a diagnostic mode entails sending of one or more errors to a mobile device (Fig. 3) as result from listening to fault signaling obtained from monitored field devices, enabling the mobile device to consider firmware option as part of mobile user assessment of a fix.
Therefore, it would have been obvious at the time of the invention for one skill in the art to
implement the mobile user in '756 so that diagnosis using UI of the mobile device upon receipt of
the logged errors in the mobile device would enable assessment by the mobile user, of the one or
more errors for identification of patterns or fault types, and decision making based thereon – as shown in UI obtaining update recommendation in Fernando, and considering firmware update in mobile user by Schweitzer – including considering corrective measures/options to address the error, such as selecting a remediating solution thereto, the latter effected by identifying and retrieving a specific firmware update from a remote repository as set forth in '756; because
combining assessment role and decision making of an user or operator of a mobile platform with diagnostic entity in direct connection to the mobile device and target electronic devices whose operations are reported/logged and diagnosed under the update paradigm and support by a remote entity/store capable of providing software update accessible in plurality of instances or versions would enhance/facilitate likelihood of a mobile user being directly, via a wireless communication paradigm, apprised of failure or extent of the fault being passed in real-time from diagnose of reported data, enabling thereby user decision making and assessment of the course of remedial action to take, including opting for a software update on basis of one among the plurality of instances provided from the external store – one selected from plurality of firmware versions – in order for SW upgrade action to be deployed or initiated timely in response to the level or specificity of the fault being diagnosed in relation to the state of information collected from the electronic device to which SW upgrade or repair representing but one possible version (among other plurality thereof) is adopted/taken by choice or assessment of mobile user.
Therefore, '756 claim l (method) based on the rationale from above is deemed an obvious variant to instant claim 1 (method).
Instant claim 12 (device) recites the same features to instant claim l, whereas ‘756 claim 5 (device) recites the same features to ‘756 claim 1; therefore, instant claim 12 would be deemed an obvious variant to '756 claim 5 for the same obvious reasons set forth above.
Instant claim 19 (method) recites the same features to instant claim l; therefore, instant claim 19 would be deemed an obvious variant to '756 claim 1, for the same obvious reasons set forth above
Dependent claims 2, 5-7, 10-11, 17-18 for being dependent upon a rejected base claim, are equally deemed non-patentable for the reasons set forth from above.
Response to Arguments
Applicant's arguments filed 12/15/25 have been fully considered but they are not persuasive. Following are the Examiner’s observations in regard thereto.
(A ) Applicants have submitted that regarding the new language of amended claim 1, Fernando does not seem to teach error logging by a smoking device; nor assessment thereof by a mobile device(Applicants Remarks pg. 8)
Fernando has been cited to teach sending of fault indications to a mobile device whereas the assessment of the faults is based on user consideration of update recommended from diagnostic unit, which performs testing of the received information collected from operating a smoking device apparatus. It is therefore deemed that Fernando is proper a prior art showing that a mobile device can be transmitted fault information from operation or usage of smoking devices or products. Moreover, the language about using a mobile device performing assessment over received information from operating or using smoking or tabaco related products is a feature newly added to the claim in question; and merits raised in regard to a newly added limitation is considered largely MOOT in view of the new grounds of rejection being issued responsive thereto.
(B ) Applicants have submitted that Sigal does not teach Assessment by the mobile device of errors logged by the smoking device (Applicants Remarks pg. 9, middle). However, a close look at the rejection has it that Sigal is not provided to teach “assessment by a mobile device” but rather to teach selecting of applicable firmware(s), from a store of the multiple items of firmware, based on an diagnosis assessment, performed by the mobile device operator, of the one or more errors, malfunctions encountered with utilization of a personal electronic device/appliance. The rebut directed at Sigal is considered largely misplaced.
(C ) Applicants have submitted Sigal does teach selection of multiple items of firmware (Applicants Remarks bottom pg. 9). However, the rejection has been adjusted to teach the multiple items of firmware shown in Sigal in combination the teachings by Sherman, and this new combination is rendering the Applicant’s allegation (over Sigal) largely inconclusive or non-commensurate with the prima-facie aspect of the prosecution.
( D) Applicants have submitted that claim 12 ,5-6, 17, 7, 10, 11 all are deemed allowable for the lack of a proper articulation on obviousness using Alarcon, Fernando and Sigal by the prosecution (Applicants Remarks pg. 10-11). The grounds of rejection applied to the each of the above claims are not found as properly rebutted with case of rebut expressed with detailed analysis and counterpoints by factual proofs, therefore, the rejected state will stand.
( E ) Applicants have submitted that based on the added limitation to claim 1, the Double Patenting Rejection is overcome, as Sigal does not teach (Applicants Remarks pg. 12) “assessment” by a mobile device. However, the Double Patenting rejection has been modified responsive to the added change being relied upon by the Applicant.
In all, the claims stand rejected as set forth in the Office Action.
Conclusion
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/Tuan A Vu/
Primary Examiner, Art Unit 2193
January 10, 2026