DETAILED ACTION
Notice of 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 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.
Claims 27 and 29 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.
Regarding Claim 27, the limitation that the calculation of dR/dt for a mesh heater is “determined from a maximum resistance value determined in the first two heating pulses of a heating cycle,” is inconsistent with the disclosure in the Specification and, therefore, the scope of the claimed limitation is unclear. The Specification discloses that, “the increase of the electric resistance ratio between the first two heating pulses dR/dtp2-p1 in each heating cycle is used as the monitored parameter in equation (2),” and thus the electrical resistance ratio is based on the change in the resistance ratio between the first two heating pulses, and not maximum resistance alone. (Specification, p. 19 L 13-20) Accordingly, Claim 27 is rendered indefinite as it is unclear what equation is being used to determine the electrical resistance ratio in the mesh heater. In the interest of compact prosecution, this limitation will be construed to require dR/dt is determined from a difference in maximum resistance values determined in the previous heating cycles.
Regarding Claim 29, the limitation that the calculation of dR/dt for a wick and coil heater is “determined from a difference in resistance value determined in consecutive heating cycle,” is inconsistent with the disclosure in the Specification and, therefore, the scope of the claimed limitation is unclear. The Specification discloses that, “the increase of the electric resistance ratio dR/dtRANGE is determined from the increase in the temperature range of the heating element during a full heating cycle, wherein the temperature range is the difference between the maximum and the minimum temperatures during a heating cycle,” and thus the electrical resistance ratio is based on the maximum change in resistance over the entire heating cycle, not the difference between successive (i.e. consecutive) heating cycles.. (Specification, p. 20 L 6-11) Accordingly, Claim 29 is rendered indefinite as it is unclear what equation is being used to determine the electrical resistance ratio in the wick and coil heater. In the interest of compact prosecution, this limitation will be construed to require dR/dt is determined from a difference in resistance values determined in the previous heating cycles.
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 15 and 30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 11 and 19 of U.S. Patent Application No. 20210195948 in view of Peleg (US-20140014126). Although the claims at issue are not identical, they are not patentably distinct from each other because of the following (limitations not taught by copending Application are NOT bolded)
This is a nonstatutory double patenting rejection.
Instant Application (18/570,857)
Reference Application 1 (US 20210195948)
Claim 15:
A method of controlling a supply of power to a heating element in an electrically operated aerosol-generating system, the method comprising:
regulating the supply of power to the heating element during a plurality of discrete heating cycles;
determining an electrical resistance ratio dR/dt of the heating element for a predefined time interval during a heating cycle;
calculating a rolling average value sn of the electrical resistance ratio dR/dt of the heating element for n preceding heating cycles, wherein n is an integer greater than 1;
comparing the electrical resistance ratio dR/dt of the heating element with the calculated rolling average value; determining an adverse condition when the electrical resistance ratio dR/dt is greater than the calculated rolling average value by more than a threshold value; and
controlling power supplied to the heating element based on whether an adverse condition at the heating element is determined,
wherein the threshold value for determining an adverse condition is determined from a standard deviation σ of the electrical resistance ratio dR/dt.
Claim 19:
A method of controlling a supply of power to a heating element in an electrically operated aerosol-generating system, comprising:
regulating the supply of power to the heating element during a plurality of discrete heating cycles in response to user inputs;
determining a maximum electrical resistance of the heating element during each heating cycle;
calculating a rolling average value of the maximum electrical resistance of the heating element for n preceding heating cycles, wherein n is an integer greater than 1;
comparing the maximum electrical resistance of the heating element with the calculated rolling average value; determining an adverse condition when the maximum electrical resistance is greater than the calculated rolling average value by more than a threshold value, the threshold value being stored in the memory; and controlling the power supplied to the heating element based on whether there is the adverse condition at the heating element or providing an indication based on whether there is the adverse condition at the heating element.
Claim 30:
An electrically operated aerosol-generating system, comprising:
a heating element configured to heat an aerosol-forming substrate proximate to the heating element;
a power supply configured to supply power to the heating element; and
electric circuitry configured to:
regulate a supply of power to the heating element during a plurality of discrete heating cycles,
determine an electrical resistance ratio dR/dt of the heating element for a predefined time interval,
calculate a rolling average value sn of the electrical resistance ratio dR/dt of the heating element for n preceding heating cycles, wherein n is an integer greater than 1, compare the electrical resistance ratio dR/dt of the heating element with the calculated rolling average value sn; determine an adverse condition when the electrical resistance ratio dR/dt is greater than the rolling average value sn by more than a threshold value, and
control power supplied to the heating element based on whether an adverse condition at the heating element is determined, wherein the threshold value for determining an adverse condition is determined from the standard deviation a of the electrical resistance ratio dR/dt
Claim 11:
An electrically operated aerosol-generating system, comprising:
a heating element configured to heat an aerosol-forming substrate proximate to the heating element;
a power supply configured to supply power to the heating element; and
electric circuitry in communication with the heating element and the power supply, the electric circuitry comprising a memory and being configured to: regulate the supply of power to the heating element during a plurality of discrete heating cycles in response to user inputs,
determine a maximum electrical resistance of the heating element during each heating cycle,
calculate a rolling average value of the maximum electrical resistance of the heating element for n preceding heating cycles, wherein n is an integer greater than 1, compare the maximum electrical resistance of the heating element with the calculated rolling average value,
determine an adverse condition when the maximum electrical resistance is greater than the calculated rolling average value by more than a threshold value, the threshold value being stored in the memory, and control the power supplied to the heating element based on whether there is the adverse condition at the heating element or to provide an indication based on whether there is the adverse condition at the heating element.
Claim 19 of the ‘948 Patent (Reference Application 1) teaches substantially the method of Claim 15 of the instant application except for wherein the threshold value for determining an adverse condition is determined from a standard deviation σ of the electrical resistance ratio dR/dt.
However, Peleg teaches wherein the threshold value for determining an adverse condition is determined from a standard deviation σ of the electrical resistance ratio dR/dt. [Para. 46] (Examiner Note: Peleg teaches a temperature control method of the heating element for an E-cig, where the value for the warning point (i.e. threshold value of an adverse condition) is defined as outside a predetermined number of standard deviations of the heat-transfer time constant (Tau) based on Statistical process control. As the determination of an adverse condition is determined using a standard deviation of the control variable (Tau in this case), it is understood to teach this limitation.)
Peleg is in the same field of invention as the application because both are related to heating control of an aerosol-generation system, and thus qualifies as analogous art. [MPEP 2141.01(a)]
It would have been obvious to one of ordinary skill in the art before the effective filing date of the application to modify the method of Reference Application 1 with the control method using a standard deviation in determining dR/dt taught in Peleg to provide adaptive control of power supply and prevent burning. (Para. 46) Accordingly, Claim 15 is rejected as obvious over Reference Application 1 in view of Peleg.
Claim 11 of the Reference Application 1 teaches substantially the device of Claim 30 of the instant application except for wherein the threshold value for determining an adverse condition is determined from a standard deviation σ of the electrical resistance ratio dR/dt
However, Peleg teaches wherein the threshold value for determining an adverse condition is determined from a standard deviation σ of the electrical resistance ratio dR/dt. [Para. 46] (Examiner Note: Peleg teaches a temperature control method of the heating element for an E-cig, where the value for the warning point (i.e. threshold value of an adverse condition) is defined as outside a predetermined number of standard deviations of the heat-transfer time constant (Tau) based on Statistical process control. As the determination of an adverse condition is determined using a standard deviation of the control variable (Tau in this case), it is understood to teach this limitation.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the application to modify the method of Reference Application 1 with the control method using a standard deviation in determining dR/dt taught in Peleg to provide adaptive control of power supply and prevent burning. (Para. 46) Accordingly, Claim 30 is rejected as obvious over Reference Application 1 in view of Peleg.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 15-21, 25, 27-30 are rejected under 35 U.S.C. 103 as being unpatentable over Bilat et al (WO 2019/229112) and further in view of Peleg et al. (US 2014/0014126).
NOTE: US 2021/0195948, which provides a verbatim disclosure of WO 2019/229112, is used for mapping the claim elements.
Regarding Claim 15, Bilat discloses A method of controlling a supply of power to a heating element in an electrically operated aerosol-generating system (Examiner Note: The preamble of a claim will be treated as a claim limitation to the extent that it limits the structure of the claimed invention (MPEP 2111.02-I). When the body of the claim defines a structurally complete invention, the preamble is considered to be a mere statement of intended use and not limiting the scope of the claim. Id. Accordingly, the preamble will be considered non-limiting.), the method comprising:
regulating the supply of power to the heating element during a plurality of discrete heating cycles [Para. 62, 66, 71] (Examiner Note: Bilat discloses that, “[t]he electric circuitry may be configured to commence a supply of electrical power from the electrical power supply to the heater at the start of a heating cycle. The electric circuitry may be configured to terminate a supply of electrical power from the electrical power supply to the heater at the end of a heating cycle." (Para. 62));
determining an electrical resistance ratio dR/dt of the heating element for a predefined time interval during a heating cycle [Para. 71, 94-99, 104] (Examiner Note: Bilat discloses, “the depletion of aerosol-forming substrate is determined by monitoring the first derivative of the electrical resistance with respect to time, dR/dt. In other words, this embodiment monitors the rate of change in heater resistance." (Para. 104));
calculating a rolling average value s_n of the electrical resistance ratio dR/dt of the heating element for n preceding heating cycles, wherein n is an integer greater than 1 [Para. 71, 99] (Examiner Note: Bilat discloses “a method of controlling the supply of power to a heating element in an electrically operated aerosol-generating system, comprising: … calculating a rolling average value of maximum electrical resistance of the heating element for n preceding heating cycles, wherein n is an integer greater than 1.” (Para. 71));
comparing the electrical resistance ratio dR/dt of the heating element with the calculated rolling average value [Para. 71, 121-125] (Examiner Note: Bilat discloses, “the electric circuitry determines an adverse condition by comparing a detected maximum electrical resistance against a rolling average of maximum electrical resistance as detected in n preceding puffs or heating cycles…. The application of a rolling average allows the electric circuitry to compare a maximum resistance as detected in a heating cycle against an average value that is representative of a number of the preceding heating cycles." (Paras. 121-125));
determining an adverse condition when the electrical resistance ratio dR/dt is greater than the calculated rolling average value by more than a threshold value [Para. 71, 105, 121] (Examiner Note: Bilat discloses "the electric circuitry determines adverse condition if a difference between the maximum electrical resistance during a heating cycle and the rolling average value exceeds a predetermined threshold." (Para. 121)); and
controlling power supplied to the heating element based on whether an adverse condition at the heating element is determined [Para. 71, 110] (Examiner Note: Bilat discloses "the electric circuitry is configured to cease power supply to the heater assembly 30 upon detecting that the first derivative of electric resistance dR/dt has exceeded a maximum first derivative threshold, either immediately upon, or after, the lapse of the predetermined time period." (Para. 110)),
Bilat does not disclose wherein the threshold value for determining an adverse condition is determined from a standard deviation σ of the electrical resistance ratio dR/dt.
However, Peleg teaches wherein the threshold value for determining an adverse condition is determined from a standard deviation σ of the electrical resistance ratio dR/dt. [Para. 46] (Examiner Note: Based on the disclosure, this limitation is understood to require that standard deviation of the control variable is one of the variables used in the determination of adverse condition. Peleg teaches a temperature control method of the heating element for an E-cig, where the value for the warning point (i.e. threshold value of an adverse condition) is defined as outside a predetermined number of standard deviations of the heat-transfer time constant (Tau) based on Statistical process control. As the determination of an adverse condition is determined using a standard deviation of the control variable (Tau in this case), it is understood to teach this limitation.)
Peleg is in the same field of invention as the application because both are related to heating control of an aerosol-generation system, and thus qualifies as analogous art. [MPEP 2141.01(a)]
It would have been obvious to one of ordinary skill in the art before the effective filing date of the application to modify Bilat with the control method taught in Peleg to provide adaptive control of power supply and prevent burning. One having ordinary skill in the art would recognize that the teachings of Peleg could be combined with Bilat with a reasonable expectation of success because they both relate to temperature control systems for E-cigs. One of ordinary skill in the art would be motivated to incorporate the teachings of Peleg because it specifically teaches that the control method, “may be used to warn the user to stop using the e-Cig because a burning situation may occur shortly,” and the statistical modelling allows for the control conditions to be modelled based on the user’s operation, making control more adaptable to user preferences. (Para. 46) Accordingly, Claim 15 is rejected as obvious over Bilat in view of Peleg.
Regarding Claim 16, Bilat in view of Peleg discloses all the limitations of Claim 15. Bilat further discloses wherein electrical power is supplied to the heating element during each heating cycle in pulsed mode. [Paras. 64-66] (Examiner Note: Bilat discloses a method wherein, “The electric circuitry may be configured to provide a pulsed supply of electrical power from the electrical power supply to the heater,” and thus discloses this limitation. (Para. 64))
Regarding Claim 17, Bilat in view of Peleg discloses all of the limitations of Claim 15. Bilat further discloses wherein electrical power is supplied to the heating element in fixed power mode or in fixed duty cycle mode. [Paras. 63, 66] (Examiner Note: Bilat discloses a method wherein, “The electric circuitry may be configured to provide a continuous supply of electrical power from the electrical power supply to the heater.” (Para. 63) As this is understood to disclose a fixed power mode, Bilat discloses this limitation. Furthermore, as providing a pulsed power supply is understood as providing a fixed duty cycle, Bilat further discloses the alternative limitation.)
Regarding Claim 18, Bilat in view of Peleg discloses all of the limitations of Claim 15. Bilat further discloses wherein n for determining the rolling average s_n of the electrical resistance ratio dR/dt is between 5 and 30. [Paras. 71, 121] (Examiner Note: Bilat claims determining a rolling average of the electrical resistance ration dR/dt is between 2 and 5, and provides a specific example of n=4. (Claim 12) When the prior art discloses a range which touches or overlaps the claimed range, but no specific examples falling within the claimed range are disclosed, the claimed subject matter is anticipated if the reference is disclosed with sufficient specificity. The claim is anticipated if there is no allegation of criticality or any evidence demonstrating any difference across the range (MPEP 2131.03-II) and thus discloses this limitation.)
Regarding Claim 19, Bilat in view of Peleg discloses all of the limitations of Claim 15. Bilat further discloses wherein n for determining the rolling average s_n of the electrical resistance ratio dR/dt. [Paras. 71, 121] (Examiner Note: Bilat discloses using a rolling average of n number of heating cycles but does not specifically disclose n=10.)
Bilat and Peleg do not disclose wherein n … is 10.
However, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. MPEP § 2144.05-II-A.
Therefore, it would have been obvious to one having ordinary skill before the effective filing date of the instant application to implement rolling average based on a plurality of previous heating cycles as taught in Bilat because it is routine optimization. Bilat discloses that increasing the sample size (i.e. number of heating cycles (n) calculated for the rolling average) improves the accuracy of the modeling by allowing closer approximation of the first derivative of resistance but requires more powerful processors to carry out larger calculations. Thus, one having ordinary skill in the art would recognize that the sample size of the rolling average as a result effective variable where the optimization will provide more accurate modelling of the temperature behavior, without drastically increasing required processing power. Therefore, Bilat discloses the sample size of the rolling average as a result effective variable for the accuracy of temperature control and processing requirements of the device. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. [MPEP § 2144.05-II-A.] It would have been obvious to one of ordinary skill in the art before the effective filing date of the immediate application to have a sample size of 10 or more heating cycles in order to increase accuracy of the temperature control of the heating element, because discovering an optimum value of a result effective variable involves only routine skill in the art. Accordingly, Claim 19 is rejected as obvious over Bilat in view of Peleg.
Regarding Claim 20, Bilat in view of Peleg discloses all of the limitations of Claim 15. Bilat further discloses wherein the threshold value for determining an adverse condition is determined from the electrical resistance ratio dR/dt taking into account the rolling average of the resistance ratio dR/dt. [Paras. 71, 121] (Examiner Note: Bilat discloses “the electric circuitry determines an adverse condition by comparing a detected maximum electrical resistance against a rolling average of maximum electrical resistance as detected in n preceding puffs or heating cycles.” (Para. 121) Bilat discloses a range of n of 2-5, with a specific example of n=4.)
Bilat does not disclose wherein the threshold value for determining an adverse condition is determined from the standard deviation σ.
Peleg further teaches wherein the threshold value for determining an adverse condition is determined from the standard deviation σ [Para. 46] (Examiner Note: As discussed above, Peleg discloses using the standard deviation of the control variable to determine the adverse condition and thus teaches this limitation.)
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the application to modify Bilat with the control method taught in Peleg for the same reasons as described in Claim 15.
Neither Bilat or Peleg disclose taking into account the rolling average of the resistance ratio dR/dt determined in the previous 50 heating cycles, or the previous 30 heating cycles, or the previous 10 heating cycles.
However, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. MPEP § 2144.05-II-A.
Therefore, it would have been obvious to one having ordinary skill before the effective filing date of the instant application to implement rolling average based on a plurality of previous heating cycles as taught in Bilat because it is routine optimization. Bilat discloses that increasing the sample size (i.e. number of heating cycles (n) calculated for the rolling average) improves the accuracy of the modeling by allowing closer approximation of the first derivative of resistance but requires more powerful processors to carry out larger calculations. Thus, one having ordinary skill in the art would recognize that the sample size of the rolling average as a result effective variable where the optimization will provide more accurate modelling of the temperature behavior, without drastically increasing required processing power. Therefore, Bilat discloses the sample size of the rolling average as a result effective variable for the accuracy of temperature control and processing requirements of the device. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. [MPEP § 2144.05-II-A.] It would have been obvious to one of ordinary skill in the art before the effective filing date of the immediate application to have a sample size of 10 to 50 heating cycles in order to increase accuracy of the temperature control of the heating element, because discovering an optimum value of a result effective variable involves only routine skill in the art. Accordingly, Claim 20 is rejected as obvious over Bilat in view of Peleg.
Regarding Claim 21, Bilat in view of Peleg discloses all of the limitations of Claim 15. Bilat further discloses wherein the threshold value for determining an adverse condition is determined from the electrical resistance ratio dR/dt taking into account the rolling average of the resistance ratio dR/dt. [Paras. 71, 121] (Examiner Note: As discussed above, Bilat discloses a method for determining dR/dt wherein the previous heating cycles are used in the determination, but it only discloses an n up to 5)
Bilat does not disclose wherein the threshold value for determining an adverse condition is determined from the standard deviation σ
Peleg further teaches wherein the threshold value for determining an adverse condition is determined from the standard deviation σ [Para. 46] (Examiner Note: As discussed above, Peleg discloses using the standard deviation of the control variable to determine the adverse condition and thus teaches this limitation.)
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the application to modify Bilat with the control method taught in Peleg for the same reasons as described in Claim 15.
Bilat and Peleg do not disclose taking into account the rolling average of the resistance ratio dR/dt determined in the previous 30 heating cycles.
However, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. MPEP § 2144.05-II-A.
Therefore, it would have been obvious to one having ordinary skill before the effective filing date of the instant application to implement rolling average based on a plurality of previous heating cycles as taught in Bilat because it is routine optimization. Bilat discloses that increasing the sample size (i.e. number of heating cycles (n) calculated for the rolling average) improves the accuracy of the modeling by allowing closer approximation of the first derivative of resistance but requires more powerful processors to carry out larger calculations. Thus, one having ordinary skill in the art would recognize that the sample size of the rolling average as a result effective variable where the optimization will provide more accurate modelling of the temperature behavior, without drastically increasing required processing power. Therefore, Bilat discloses the sample size of the rolling average as a result effective variable for the accuracy of temperature control and processing requirements of the device. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. [MPEP § 2144.05-II-A.] It would have been obvious to one of ordinary skill in the art before the effective filing date of the immediate application to have a sample size of 30 heating cycles in order to increase accuracy of the temperature control of the heating element, because discovering an optimum value of a result effective variable involves only routine skill in the art. Accordingly, Claim 21 is rejected as obvious over Bilat in view of Peleg.
Regarding Claim 25, Bilat in view of Peleg discloses all of the limitations of Claim 15. Bilat further discloses wherein the aerosol-generating system is transferred into a locked state if an adverse condition is determined. [Para. 110] (Examiner Note: Bilat discloses that, “the electric circuitry is configured to cease power supply to the heater assembly 30 upon detecting that the first derivative of electric resistance dR/dt has exceeded a maximum first derivative threshold,” and thus discloses a locked state upon determination of an adverse condition.)
Regarding Claim 27, Bilat in view of Peleg discloses all of the limitations of Claim 15. Bilat further discloses wherein the heating element [Heater assembly 30, Fig. 1a] is a mesh heater [Paras. 91, 93-95] (Examiner Note: Bilat discloses the heater assembly (30) with a mesh of filaments that heat the capillary material to aerosolize the substrate and thus discloses this limitation.) and the electrical resistance ratio dR/dt is determined from a maximum resistance value determined in the first two heating pulses of a heating cycle. [Paras. 119-123] (Examiner Note: Noting the 112(b) rejection above, Bilat discloses a heater assembly (30) consisting of a mesh heater where the electric circuitry, “detects a maximum electrical resistance after the lapse of a predetermined time period following the start of the heating cycle.” (Para. 119) Bilat further discloses that dR/dt is determined from the difference of the detected maximum resistance with the rolling average over previous time periods. Accordingly, Bilat discloses a mesh heater where dR/dt is determined from a difference in resistance values in previous time periods.)
Regarding Claim 28, Bilat in view of Peleg discloses all of the limitations of Claim 15. Bilat further discloses wherein the electrical resistance ratio dR/dt is determined from a difference in maximum resistance values determined in consecutive heating cycles. [Paras. 119-122] (Examiner Note: Bilat discloses that the, “[m]aximum electrical resistances are each detected in the respective heating cycle 530a-530f,” where dR/dt is determined by comparing each resistance value to the rolling average, and thus determined by a change in maximum resistance over heating cycles, and discloses this limitation. (Para.119))
Bilat does not specifically disclose a method of control wherein the heating element is a ceramic heater. (Examiner Note: Bilat discloses a method for temperature control in an aerosol generating system, and further discloses the heater system can take a number of configurations well known in the art, but only specifically discloses control of a mesh heater (Paras. 91, 95))
Bilat alternatively teaches wherein the heating element [Heater assembly 30, Fig. 1a] is a ceramic heater [Paras. 48-50] (Examiner Note: Bilat further teaches the heater assembly (30) can alternatively take the form of a ceramic heater and thus teaches this limitation.)
It is obvious to substitute one known element for another to obtain predictable results. See MPEP 2143(B). The MPEP states the prior art must: (1) teach a device (method) which differs from the claimed device (method) by the substitution of some component or step with another component (step), (2) teach that the substituted components and their functions were known, and (3) show that one of ordinary skill could have substituted one known element for another to yield predictable results. See MPEP 2143(B).
In this case, Bilat teaches a method using a heating element that differs from the claimed method because the heating element is a mesh heating element. Both heating elements perform the function of providing heat to aerosolize the substrate in the vaporizing device. One of ordinary skill in the art would recognize the mesh heater of Bilat could be substituted with the ceramic heating element to achieve the predictable result of heating the substrate to be aerosolized.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device in Bilat to perform heating with a ceramic heating element because substitution of one know element for another yields predictable results to one of ordinary skill in the art. Accordingly, Claim 28 is rejected as obvious over Bilat in view of Peleg.
Regarding Claim 29, Bilat in view of Peleg discloses all of the limitations of Claim 15. Bilat further discloses wherein and the electrical resistance ratio dR/dt is determined from a difference in resistance determined in consecutive heating cycles. [Paras. 119-122] (Examiner Note: Noting the 112(b) rejection above, Bilat discloses that the, “[m]aximum electrical resistances are each detected in the respective heating cycle 530a-530f,” where dR/dt is determined by comparing each resistance value to the rolling average, and thus determined by a change in maximum resistance over heating cycles, and discloses this limitation. (Para.119))
Bilat does not specifically disclose a method of control wherein the heating element is a wick and coil heating element (Examiner Note: Bilat discloses a method for temperature control in an aerosol generating system, and further discloses the heater system can take a number of configurations well known in the art, but only specifically discloses control of a mesh heater (Paras. 91, 95))
Bilat alternatively teaches wherein the heating element [Heater assembly 30, Fig. 1a] is a wick and coil [Paras. 45, 51] (Examiner Note: Bilat further teaches the heater assembly (30) can alternatively take the form of a ceramic heater and thus teaches this limitation.)
It is obvious to substitute one known element for another to obtain predictable results. See MPEP 2143(B). The MPEP states the prior art must: (1) teach a device (method) which differs from the claimed device (method) by the substitution of some component or step with another component (step), (2) teach that the substituted components and their functions were known, and (3) show that one of ordinary skill could have substituted one known element for another to yield predictable results. See MPEP 2143(B).
In this case, Bilat teaches a method using a heating element that differs from the claimed method because the heating element is a mesh heating element. Both heating elements perform the function of providing heat to aerosolize the substrate in the vaporizing device. One of ordinary skill in the art would recognize the mesh heater of Bilat could be substituted with the wick and coil heater to achieve the predictable result of heating the substrate to be aerosolized.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device in Bilat to perform heating with a wick and coil heating element because substitution of one know element for another yields predictable results to one of ordinary skill in the art. Accordingly, Claim 29 is rejected as obvious over Bilat in view of Peleg.
Regarding Claim 30, Bilat discloses An electrically operated aerosol-generating system (Examiner Note: The preamble of a claim will be treated as a claim limitation to the extent that it limits the structure of the claimed invention (MPEP 2111.02-I). When the body of the claim defines a structurally complete invention, the preamble is considered to be a mere statement of intended use and not limiting the scope of the claim. Id. As the claims provide a structurally complete aerosol generating system (i.e. a vape), this portion of the preamble is considered intended use, and thus not limiting the scope of the claim.), comprising:
a heating element [Heater filaments 36 of heater assembly 30, Fig. 1a] configured to heat an aerosol-forming substrate [Liquid aerosol forming substrate conveyed via capillary materials 27, 28, Fig. 3] proximate to the heating element [Para. 91-93] (Examiner Note: Bilat discloses, “the heater filaments 36, may be in contact with the capillary material 27 and so aerosol-forming substrate can be conveyed directly to the mesh heater,” and thus discloses this limitation.);
a power supply [Battery 14, Fig. 1a] configured to supply power to the heating element [Heater filaments 36, Fig. 1a] [Paras. 83-85]; and
electric circuitry [Control electronics 16, Fig. 1, paras. 97-110] configured to:
regulate a supply of power to the heating element during a plurality of discrete heating cycles [Para. 62, 66, 71] (Examiner Note: Bilat discloses that, “[t]he electric circuitry may be configured to commence a supply of electrical power from the electrical power supply to the heater at the start of a heating cycle. The electric circuitry may be configured to terminate a supply of electrical power from the electrical power supply to the heater at the end of a heating cycle." (Para. 62)),
determine an electrical resistance ratio dR/dt of the heating element for a predefined time interval [Para. 71, 94-99, 104] (Examiner Note: Bilat discloses, “the depletion of aerosol-forming substrate is determined by monitoring the first derivative of the electrical resistance with respect to time, dR/dt. In other words, this embodiment monitors the rate of change in heater resistance." (Para. 104)),
calculate a rolling average value s_n of the electrical resistance ratio dR/dt of the heating element for n preceding heating cycles, wherein n is an integer greater than 1 [Para. 71, 99] (Examiner Note: Bilat discloses “a method of controlling the supply of power to a heating element in an electrically operated aerosol-generating system, comprising: … calculating a rolling average value of maximum electrical resistance of the heating element for n preceding heating cycles, wherein n is an integer greater than 1.” (Para. 71)),
compare the electrical resistance ratio dR/dt of the heating element with the calculated rolling average value s_n value [Para. 71, 121-125] (Examiner Note: Bilat discloses, “the electric circuitry determines an adverse condition by comparing a detected maximum electrical resistance against a rolling average of maximum electrical resistance as detected in n preceding puffs or heating cycles…. The application of a rolling average allows the electric circuitry to compare a maximum resistance as detected in a heating cycle against an average value that is representative of a number of the preceding heating cycles." (Paras. 121-125));
determine an adverse condition when the electrical resistance ratio dR/dt is greater than the rolling average value s_n by more than a threshold value [Para. 71, 105, 121] (Examiner Note: Bilat discloses "the electric circuitry determines adverse condition if a difference between the maximum electrical resistance during a heating cycle and the rolling average value exceeds a predetermined threshold." (Para. 121)), and
control power supplied to the heating element based on whether an adverse condition at the heating element is determined [Para. 71, 110] (Examiner Note: Bilat discloses "the electric circuitry is configured to cease power supply to the heater assembly 30 upon detecting that the first derivative of electric resistance dR/dt has exceeded a maximum first derivative threshold, either immediately upon, or after, the lapse of the predetermined time period." (Para. 110)),
Bilat does not disclose wherein the threshold value for determining an adverse condition is determined from the standard deviation σ of the electrical resistance ratio dR/dt.
However, Peleg teaches wherein the threshold value for determining an adverse condition is determined from the standard deviation σ of the electrical resistance ratio dR/dt. [Para. 46] (Examiner Note: As discussed in Claim 1 above, Peleg teaches a control circuit that performs determination of an adverse condition using a standard deviation of the control variable (Tau in this case) and thus understood to teach this limitation.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the application to modify Bilat with the control circuit taught in Peleg to provide adaptive control of power supply and prevent burning. One having ordinary skill in the art would recognize that the teachings of Peleg could be combined with Bilat with a reasonable expectation of success because they both relate to temperature control systems for E-cigs. One of ordinary skill in the art would be motivated to incorporate the teachings of Peleg because it specifically teaches that the control circuit, “may be used to warn the user to stop using the e-Cig because a burning situation may occur shortly,” and the statistical modelling allows for the control conditions to be modelled based on the user’s operation, making control more adaptable to user preferences. (Para. 46) Accordingly, Claim 30 is rejected as obvious over Bilat in view of Peleg.
Claims 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over Bilat et al in view of Peleg, and further in view of Suzuki et al. (US 20180220711)
Regarding Claim 22, Bilat in view of Peleg discloses all of the limitations of Claim 20. Bilat further discloses wherein the threshold value for determining an adverse condition is determined from the electrical resistance ratio dR/dt. [Paras. 71, 121-125] (Examiner Note: As discussed in Claim 15 above, Bilat discloses a method for temperature control of an aerosol generating device wherein the threshold value for an adverse condition is determined from dR/dt.)
Bilat does not disclose wherein the threshold value is determined from a product of the standard deviation σ of the electrical resistance ratio dR/dt and a predefined constant value
However, Peleg further teaches wherein the threshold value for determining an adverse condition is determined from the standard deviation σ [Para. 46] (Examiner Note: As discussed in Claim 15, Peleg discloses using the standard deviation of the control variable to determine the adverse condition and thus teaches this limitation.)
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the application to modify Bilat with the control method taught in Peleg for the same reasons as described in Claim 15.
Bilat and Peleg do not disclose a product of the standard deviation σ and a predefined constant value. (Examiner Note: Both Peleg and Bilat further disclose that a material dependent constant (temperature coefficient of resistance, alpha) is multiplied with the change in temperature to account for differences in materials but does not teach multiplying the standard deviation with a constant.)
However, Suzuki teaches a product of the standard deviation σ and a predefined constant value [Constant n, para. 134] (Examiner Note: Suzuki teaches that the device controls the heating of the device based on standard deviations of the control parameter, where the upper and lower limit of the control parameter (L) is determined by the m +/- n σ, where m is the average value and n is a positive real number. Accordingly, Suzuki teaches determination of the threshold value using a product the standard deviation with a predefined constant value.)
Suzuki is in the same field of invention as the application because both are related to heating control of an aerosol-generation system, and thus qualifies as analogous art. [MPEP 2141.01(a)]
It would have been obvious before the effective filing date of the invention to incorporate the teachings of Suzuki with Bilat to provide adaptable control of the device. One having ordinary skill in the art would recognize that the teachings of Suzuki could be combined with Bilat with a reasonable degree of success as they both relate to control systems for aerosol generation devices. One having ordinary skill in the art would be motivated to incorporate the teachings of Suzuki because it allows for more adaptive control of the device as it can be used to modify the threshold value condition for different operating conditions or heater types. Accordingly, Claim 22 is rejected as obvious over Bilat in view of Peleg and Suzuki.
Regarding Claim 23, Bilat in view of Peleg and Suzuki discloses all of the limitations of Claim 22.
Bilat does not disclose wherein the predefined constant value depends on a type of the heating element used in the aerosol-generating system (Examiner Note: While Bilat discloses that different heating elements will require different control due to differences in heating behaviors, it does not specifically disclose multiplying the standard deviation by a materially dependent constant.)
However, Peleg further teaches wherein the predefined constant value depends on a type of the heating element used in the aerosol-generating system. [Peleg: Paras. 48-51, Table 2] (Examiner Note: Peleg discloses a materially dependent constant (alpha) that is used in the determination of the adverse condition to account for different thermal properties of the heating element. As the materially dependent constant depends on the type of heating element, Peleg is understood to disclose this limitation.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to incorporate a predefined constant based on the heater type to provide uniform temperature control independent of heater type. One having ordinary skill in the art would recognize that the teachings of Peleg could be incorporated with Bilat as they both relate to temperature control systems for aerosol generation devices. One of ordinary skill in the art would be motivated to incorporate the predefined constant taught in Peleg because it allows the device to perform reliable temperature control irrespective of heater type, which further simplifies control hardware and allows for interchangeability of heater types without affecting performance. Accordingly, Claim 23 is rejected as obvious over Bilat in view of Peleg and Suzuki.
Regarding Claim 24, Bilat in view of Peleg and Suzuki discloses all of the limitations of Claim 23.
Bilat and Peleg do not disclose wherein the predefined constant value amounts to about 2.5 for a mesh heater, to 1.25 for a ceramic heater, and to about 1.5 for a wick and coil heater. (Examiner Note: As discussed above, Bilat in view of Peleg and Suzuki is understood to disclose multiplying the standard deviation by a constant that depends on the type of heater but does not specifically disclose the whole number values as the predefined constant as claimed.)
However, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. MPEP § 2144.05-II-A.
Therefore, it would have been obvious to one having ordinary skill before the effective filing date of the instant application to a predefined constant as a whole number value based on the type of heater as taught in Bilat because it is routine optimization. Peleg discloses that the temperature behavior of the device can be confirmed through empirical analysis to be effectively approximated by a series of equations that provide a good fit to the measured temperature change over time, but the approximation curve can be divided in a variety of ways to fit different temperature models. (Para. 43, 51) Thus, one having ordinary skill in the art would recognize that the exact values of the equations used to approximate the temperature behavior of the device as a result effective variable where the optimization will provide accurate modelling of temperature behavior in a variety of operating conditions, while still providing a good approximation of empirical data. Therefore, Peleg discloses the exact value of the constants used in the modelling equations as a result effective variable for the mathematical modelling of empirical temperature behavior data to provide accurate control of the heating element. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. [MPEP § 2144.05-II-A.] It would have been obvious to one of ordinary skill in the art before the effective filing date of the immediate application to use whole number predefined constants to model the temperature behaviors of different heating elements, because discovering an optimum value of a result effective variable involves only routine skill in the art. Accordingly, Claim 24 is rejected as obvious over Bilat in view of Peleg and Suzuki.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Bilat et al in view of Peleg, and further in view of Tsuji et al. (RU 2749257)
Regarding Claim 26, Bilat in view of Peleg discloses all of the limitations of Claim 15.
Bilat and Peleg do not disclose wherein after a predefined time lapse in the locked state, the aerosol-generating system is unlocked such that operation of the heating element may be resumed. (Examiner Note: Bilat discloses the electric circuitry is configured to cease power supply upon detecting an adverse condition and may further prevent subsequent heating of the heating element until a new cartridge is replaced. (Para. 110) Thus, Bilat discloses a locked state, but does not specifically disclose unlocking after a predetermined period of time.)
However, Tsuji teaches wherein after a predefined time lapse in the locked state (Examiner Note: Tsuji teaches an aerosol generating device with a control unit (106) configured to “prohibit the generation of an aerosol for at least a predetermined period of time,” to prevent further heating of the load after the threshold temperature of the heater is exceeded. (Para. 286)), the aerosol-generating system is unlocked such that operation of the heating element may be resumed. [Paras. 284, 286-288] (Examiner Note: Tsuji teaches that the device can be unlocked after a return condition has been met, where the return condition for one control state takes more time than a return condition for the second control state. Accordingly, Tsuji is understood to teach an aerosol generating device with a locked state that is unlocked after a return condition is met, where the return condition is defined by a predetermined period of time, and thus teaches this limitation. Furthermore, locking the device for a predetermined period of time is analogous to unlocking the device after a predetermined period of time. As Tsuji discloses that the control unit (106) is configured to lock for a predetermined period of time, it is understood to disclose this limitation.)
Tsuji is in the same field of invention as the application because both are related to heating control of an aerosol-generation system, and thus qualifies as analogous art. [MPEP 2141.01(a)]
It would have been obvious of one of ordinary skill in the art before the effective filing date to modify the method of Bilat with the unlock return condition taught in Tsuji to prevent dry heating of the heating element. One having ordinary skill in the art would recognize the teachings of Tsuji could be combined with Bilat with a reasonable expectation of success as they both relate to temperature control of an aerosol generating device. One having ordinary skill in the art would be motivated to incorporate the teachings of Tsuji because the timed lock-out allows for the heating element to return to a suitable temperature before reactivation, preventing dry heating of the heating element. Accordingly, Claim 26 is rejected as obvious over Bilat in view of Peleg and Tsuji.
Conclusion
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/JOHN MICHAEL CHAMBERS/Examiner, Art Unit 3761
/STEVEN W CRABB/Supervisory Patent Examiner, Art Unit 3761
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