DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Claims 2-15 are amended. Claims 1-15 are presently examined.
Applicant’s arguments regarding the objections to the claims have been fully considered and are persuasive. The objections of 6/9/2026 are withdrawn.
Applicant’s arguments regarding the rejections under 35 USC 112(b) have been fully considered and are persuasive. The rejections of 6/9/2026 are overcome.
Specification
The use of the terms myblu (page 2, line 18), blu PRO (page 2, line 29), Bluetooth (page 10, line 10), and WiFi (page 10, line 11), which are trade names or marks used in commerce, have been noted in this application. The terms should be accompanied by the generic terminology; furthermore the terms should be capitalized wherever they appear or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the terms.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Interpretation
Regarding claim 1, the claim recites the limitation “such that the user input device is actuable by insertion of a pin through the opening,” which is considered to be a statement regarding the intended use of the claimed aerosol delivery device. The Courts have held that if the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP § 2114. Therefore, for the purposes of this Office action, the limitation will be interpreted as if it required a structure that could be actuated by an external pin.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 6-8, 13 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Liu (US 9,750,282).
Regarding claims 1 and 7, Liu discloses an electronic cigarette and a battery device therefore (abstract) having an air switch that includes a controlling device that controls the battery, atomizer, and light emitting device (column 10, lines 12-32, figure 17, reference numeral 819). A balance chamber is located in the air switch (figure 18, reference numeral 85) and has a first electrode plate located within it (column 13, lines 21-31, figure 18, reference numeral 815) that forms a parallel plate capacitor with a second electrode plate and changes a voltage when the second electrode plate vibrates (column 11, lines 43-57, figure 17, reference numeral 817). The second electrode plate moves under the influence of the airflow to provide a controlling signal and is located within a negative chamber (column 13, lines 32-54, figure 17, reference numeral 87), which is considered to meet the claim limitation of chamber. The first electrode plate has apertures within it that access one side of the balance chamber (column 11, lines 20-36, figure 17, reference numeral 8152). The other side of the balance chamber has first apertures (column 13, lines 21-31, figure 2, reference numeral 8127) that in turn are in communication with through holes that allow to enter the electronic cigarette (column 6, lines 4-16, figure 2, reference numeral 310), which are considered to meet the claim limitation of an opening. It is evident that a user could touch the second electrode plate, causing it to move and send a control signal, using a pin from the outside since the through holes and balance chamber apertures are all located successively and are separate by open spaces, which is considered to meet the claim limitation of user input. The balance chamber itself is considered to meet the claim limitation of an airflow passage.
Regarding claim 6, Liu discloses that device components are connected based on the controller receiving the control signal (column 13, lines 32-54, figure 17, reference numeral 87), which is considered to meet the claim limitation of adjusting a device setting.
Regarding claim 8, use of the pin to touch the second electrode plate is considered to be a form of pushing the second electrode plate, indicating that the second electrode plate is a press button.
Regarding claim 13, the first electrode plate is considered to meet the claim limitation of a transversely extending interface wall having the other claimed components.
Regarding claim 15, Liu discloses that the device has a liquid reservoir (column 5, lines 16-41), which is considered to meet the claim limitation of a component for containing an aerosol precursor.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 2-5 are rejected under 35 U.S.C. 103 as being obvious over Liu (US 9,750,282).
Regarding claim 2, Liu discloses all the claim limitations as set forth above. Liu does not explicitly disclose the apertures and holes being sized to prevent a finger from entering them.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the holes and apertures of a size that prevents a finger from entering. A change in size is generally recognized as being within the level of one of ordinary skill in the art absent evidence that the change in size results in a difference in performance. See MPEP § 2144.04 IV A.
Regarding claim 3, Liu discloses all the claim limitations as set forth above. Liu does not explicitly disclose the apertures being the claimed size.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the holes and apertures of a size that prevents a finger from entering. A change in size is generally recognized as being within the level of one of ordinary skill in the art absent evidence that the change in size results in a difference in performance. See MPEP § 2144.04 IV A.
Regarding claims 4 and 5, Liu discloses all the claim limitations as set forth above. Liu does not explicitly disclose the holes and apertures aligned along a common axis that provides a line of sight.
However, it would have been obvious to one of ordinary skill in the art to align the holes and apertures of Liu along a common axis. Rearrangement of parts where both arrangements are known equivalents is a design choice that gives predicable results. See MPEP § 2144.04 VI C.
Claims 9-12 are rejected under 35 U.S.C. 103 as being obvious over Liu (US 9,750,282) in view of Brydon (WO 97/05824).
Regarding claim 9, Liu discloses all the claim limitations as set forth above. Liu does not explicitly disclose an actuating arm.
Brydon teaches an apparatus having a planar member (figure 10, reference numeral 44) that has a sensor mounted to it that deflects under the influence of airflow to generate an electrical charge having a specific relationship with airflow (abstract, figure 9, reference numeral 60). The sensor is a cantilevered sensor (page 8, lines 26-28, page 9, lines 1-9, figure 12, reference numeral 62), which is considered to meet the claim limitation of an actuating arm.
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the second electrode of Liu for the cantilevered sensor of Brydon. One would have been motivated to do so since Liu discloses and Brydon teaches sensors that detect airflow. The simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See MPEP § 2143, B.
Regarding claim 10, Brydon teaches that the free end of the sensor forms a disc that covers an air flow passage (page 8, lines 26-28, page 9, lines 1-9, figure 12, reference numeral 72), which is considered to meet the claim limitation of a distal end. It is evident that the other end of the sensor must be mounted somewhere in the chamber since the sensor would otherwise fall.
Regarding claim 11, Brydon teaches that the sensor is a cantilevered sensor (page 8, lines 26-28, page 9, lines 1-9, figure 12, reference numeral 62).
Regarding claim 12, Brydon teaches that the sensor has a resting position but deflects under the influence of the airflow (abstract, figure 12), which is considered to meet the claim limitation of elastic.
Claim 14 is rejected under 35 U.S.C. 103 as being obvious over Liu (US 9,750,282) in view of O’Brien (US 11,504,489).
Regarding claim 14, Liu discloses all the claim limitations as set forth above. Does not explicitly disclose the second electrode being located on a printed circuit board.
O’Brien teaches an aerosol delivery device (abstract) having an air flow sensor that is directed attached to a PCB that functions as a control component (column 9, lines 29-43).
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to locate the second electrode of Liu on a PCB of O’Brien. One would have been motivated to do so since O’Brien teaches a suitable mount for an air flow detector.
Response to Arguments
Regarding the rejections under 35 USC 102 and 35 USC 103, applicant’s arguments have been fully considered but they are not persuasive. Applicant argues (a) that Liu does not disclose actuating the electrode plate using a pin, (b) that using a pin to actuate the second electrode plate may cause damage to the device, (c) that the openings of Liu are not aligned and a pin therefore could not be used to actuate the plate, and (d) that the dependent claims are allowable due to dependence on an allowable claim.
Regarding (a), while it may be true that Liu does not specifically a pin used to actuate a sensor, such an arrangement is not required by the claim. The claim is directed to an aerosol delivery device, not an aerosol delivery system, and the pin itself is not part of the device. Furthermore, the suffix “able” in the limitation “actuable” indicates capability to operate in that manner, not that the device is actually operated in that way. This language corresponds with MPEP § 2114, which states that, if the prior art structure is capable of performing the intended use, then it meets the claim. The broadest reasonable interpretation of the claim is therefore in which the user input device could be activated by a pin, but does not require an explicitly teaching of a pin or actuating a user input device using a pin.
Regarding (b), Liu discloses that the second electrode plate is a flat component that is supported by a second conductive bracket (column 10, lines 12-32, figure 17, reference numeral 817) and is capable of being elastically deformed (column 13, lines 32-54). That indicates that the second electrode plate has some structural integrity. While some forms of actuation may result in damage, other forms of actuation would not damage the electrode, so the claimed results could be achieved by the structure of Liu, which meets the broadest reasonable interpretation of the prior art showing a device that is capable of operating in the claimed manner. For instance, a pin with a protective resilient cover on its end could be used to actuate the electrode to avoid contacting the electrode with a point.
Regarding (c), a pin does not require a straight rigid body. For instance, a paper clip can be bent into different shapes, and could be used to actuate the electrode even though the holes may not be aligned. It is noted that the claims do not explicitly require the holes to be aligned such that the openings are arranged along a common axis.
Regarding (d), all claims, including the independent claim, are rejected as set forth above.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUSSELL E SPARKS whose telephone number is (571)270-1426. The examiner can normally be reached Monday-Friday, 9:00 am-5 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at 571-270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUSSELL E SPARKS/ Primary Examiner, Art Unit 1755
