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 .
Election/Restrictions
Applicant’s election of Group I in the reply filed on 8/24/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 11-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 8/24/2026.
Claim Objections
Claim 2 is objected to because of the following informalities:
Regarding claim 2, the claim limitation “the temperature reduction and temperature maintenance” should be changed to “the temperature reduction and the temperature maintenance” because these are two separate steps the controller performs.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-2, 4-10, and 16-23 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 1, the claim limitation “the temperature of the heating element” lacks antecedent basis. For examination purposes, the limitation will be interpreted as “a temperature of the heating element.” Moreover, the claim limitation “subsequent to the end of a puff” lacks antecedent basis. For examination purposes, the limitation will be interpreted as “subsequent to an end of a puff.” Therefore, claims 2, 4-10, and 16-23 are rejected for their dependencies.
Regarding claim 2, the claim limitation “the temperature reduction and temperature maintenance” lacks antecedent basis. The Examiner notes that claim 1 recites “the controller configured to reduce [a] temperature of the heating element from a first temperature to a subsequent temperature…and to maintain the heating element at the second temperature…” but does not require “a temperature reduction” or “a temperature maintenance.” For examination purposes, claim 1 will be interpreted to recite “the controller configured to perform a temperature reduction to reduce [a] temperature of the heating element from a first temperature to a subsequent temperature…and to perform a temperature maintenance to maintain the heating element at the second temperature….”
Regarding claim 16, a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, the claim recites the broad recitation “a time period…is less than 3 seconds,” and the claim also recites “a time period… less than 2 second, or less than 1 second” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For examination purposes, the limitation will be interpreted as only requiring “a time period…is less than 3 seconds.”
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(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 1-2, 4-6, 8, 16, 19-20, and 22-23 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lee (US 2020/0329776; of record).
Regarding claim 1, Lee discloses an aerosol generating device (abstract) comprising: a controller (12; Fig. 1) connected to a heater (13; “heating element”) generating an aerosol from a cigarette (2; [0026]), the controller configured to control operations of the heater ([0029]) such that on determining that a puff has ended (“subsequent to the end of a puff”), the controller changes the mode from a heating mode to a preheating mode ([0104]) such that the temperature of the heating element decreases from a heating temperature T1 (“first temperature”) to a preheating temperature T2 (see Fig. 9-10; [0135]-[0136]) which is maintained ([0006]; see also step 1220 in Fig. 12) for a preset preheating period ([0138]; “predetermined time period”), and because a puff is not detected during a preset preheating period ([0137]; “after the predetermined time period has elapsed”) the controller changes the preheating mode to a power saving mode ([0137]) in which the temperature of the heater decreases to a temperature lower than a range of the preheating temperature ([0138]) such that when a puff of a user is detected in the power saving section to change from the power saving mode to a heating mode again such that the temperature of the heater rises again to the heating temperature T1 ([0138; “increase the temperature of the heating element”).
Regarding claim 2, Lee discloses that the controller determines the preheating period, which includes decreasing the heating temperature ([0135]-[0136]) and maintaining the temperature ([0006; step 1220) between consecutive puff time points of the user ([0112]; “perform the temperature reduction and the temperature maintenance after each puff of a serios of at least two puffs”).
Regarding claim 4, Lee discloses wherein the controller is configured to control the heater such that when a puff is not detected during a preset preheating period ([0137]; “after the predetermined time period has elapsed”) the controller changes the preheating mode to a power saving mode ([0137]) in which the temperature of the heater decreases to a temperature lower than a range of the preheating temperature ([0138]) such that when a puff of a user is detected in the power saving section to change from the power saving mode to a heating mode again such that the temperature of the heater rises again to the heating temperature T1 ([0138; Fig. 10; “increase the temperature of the heating element to the first temperature”).
Regarding claim 5, Lee discloses wherein the controller is configured to control the heater such that when a puff is not detected during a preset preheating period ([0137]; “after the predetermined time period has elapsed”) the controller changes the preheating mode to a power saving mode ([0137]) in which the temperature of the heater decreases to a temperature lower than a range of the preheating temperature ([0138]) such that when a puff of a user is detected in the power saving section to change from the power saving mode to a heating mode again such that the temperature of the heater rises again to the heating temperature T1 ([0138; Fig. 10). This means that while the temperature of the heating element rises to the heating temperature T1, it passes multiple temperatures between the preheating temperature T2 and heating temperature T1 (i.e., “third temperature”; see annotated Fig. 10).
Regarding claim 6, Lee discloses wherein the controller is configured to, when a puff of a user is detected at time point 1030 in the power saving section (i.e., “upon initiation of a puff”), change from the power saving mode to a heating mode again such that the temperature of the heater rises again to the heating temperature T1 ([0138; Fig. 10). This heating step, which is initiated by a puff, involves heating from a temperature between the preheating temperature T2 and heating temperature T1 to reach the heating temperature.
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Regarding claim 8, Lee discloses the controller supplies power to the heater via a pulse width modulation (PWM) pulse signal from a power source ([0105], [0123]), such that the duty cycle from the heating section to the preheating section is decreased ([0135]-[0136]; see also Fig. 10).
Regarding claim 16, Lee discloses wherein upon determining that a puff has ended (“subsequent to the end of a puff”), the controller changes the mode from a heating mode to a preheating mode ([0104]) such that the temperature of the heating element immediately starts to decrease at time point (910, 1010) from a heating temperature T1 (“first temperature”) to a preheating temperature T2 (see Fig. 9-10; [0135]-[0136]; “time period between the end of the puff and a start of the reduction in temperature is less than 3 seconds”).
Regarding claim 19, Lee discloses the device generates aerosol rather than burning cigarette ([0002]; “heat-not-burn device”) configured for engagement with a cigarette ([0022]; see Fig. 1; “heat-not-burn consumable”).
Regarding claim 20, Lee discloses that the vaporizer (14; Fig. 14; “vaping device”) may include a liquid storage, a liquid delivery element, and a heating element ([0037]), the liquid storage is configured to store a liquid composition that is detachable from the vaporizer ([0038]; “vaping pod”).
Regarding claim 22, Lee discloses the controller is configured to heat the heater such that: (1) when a puff is not detected during a preset preheating period ([0137]; “after the predetermined time period has elapsed”) the controller changes the preheating mode to a power saving mode ([0137]) in which the temperature of the heater decreases to a temperature lower than a range of the preheating temperature ([0138]) and (2) when a puff of a user is detected in the power saving section to change from the power saving mode to a heating mode again such that the temperature of the heater rises again to the heating temperature T1 ([0138; “increase the temperature of the heating element”).
Regarding the claim limitation “the controller is configured to increase the temperature of the heating element immediately upon elapse of the predetermined time period,” such a limitation is interpreted as a computer-implemented functional claim limitation. “[A] computer-implemented functional claim limitations may narrow the functionality of the device, by limiting the specific structure capable of performing the recited function.” MPEP 2114(IV). Here, Lee’s controller is capable of performing the recited function when a puff in (2) is detected at the same time that the preset preheating period ends in (1).
Regarding claim 23, Lee discloses that the controller determines the preheating period, which includes maintaining the temperature at the preheating temperature ([0006], [0135]; step 1220) for the preset preheating period ([0137); between consecutive puff time points of the user ([0112]; “subsequent to each puff on the device”).
Regarding the claim limitation “wherein the predetermined time period is the same for each puff,” Lee discloses only one preset preheating period, meaning that the preset preheating period is the same between the consecutive puffs.
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.
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 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.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Lee as applied to claim 1 above and in further view of Abramov et al. (US 2014/0338680).
Regarding claim 7, Lee discloses the device as discussed above with respect to claim 1, wherein the heater (13) is an electro-resistive heater ([0032]) but also discloses that the heater is not limited to a resistive heater and may include all heaters which may be heated to a desired temperature ([0032]).
However, Lee is silent as to wherein the heating element is an infrared heating element.
Abramov teaches an apparatus comprising a smokable material heater (abstract) comprising a heater (3) which may be a resistive heater ([0045]) or may be an infra-red (IR) heater ([0045]), which is able to heat the smokable material (5) very rapidly in response to an activation stimulus ([0045]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted Lee’s resistive heater for Abramov’s IR heater to obtain the predictable result of heating the smokable material in the cigarette because (a) Abramov suggests resistive heaters and IR heaters are equivalents known for the same purpose of heating smokable materials ([0045]) (see MPEP 2144.06(II)); and (b) such a modification reduces the overall mass of the apparatus (i.e., makes the device smaller) while also being able to rapidly heat the heating smokable material (Abramov; [0045]).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Lee as applied to claim 1 above.
Regarding claim 9, Lee discloses the device as discussed above with respect to claim 1, wherein the controller maintains the heater at the preheating temperature ([0006]; see also step 1220 in Fig. 12) for a preset preheating period ([0138]; “predetermined time period”). Lee further discloses, after the preset preheating period passes, the device enters a power saving section in which the PWM pulse signal has a duty cycle lower than the duty cycle for maintaining the preheating temperature ([0138]).
However, Lee is silent as to the predetermined time period is between 0.5 seconds and 7 seconds. Specifically, Lee does not disclose the possible time periods for the preset preheating period.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have changed the preset preheating period in Lee to be lower, for example in the 0.5 seconds to 7 seconds period as claimed, in order to more quickly enter into the power saving section in having a lower duty cycle in order to further save the device’s power.
Claims 10 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Lee as applied to claim 1 above and in further view of Yamada (US 2023/0074631).
Regarding claims 10 and 17, Lee discloses the device as discussed above with respect to claim 1. Lee further discloses that the heaters are heated to a desired temperature, which may be set as a temperature desired by a user ([0032]).
However, Lee is silent as to the device being configured such that the predetermined time period and/or the second temperature is adjustable by a user. Moreover, Lee is silent as to a user interface for receiving, from a user, an updated parameter value for at least one of the predetermined time period or the second temperature.
Yamada teaches an information processing device for an inhalation device (abstract) comprising a user terminal (200; “user interface”) with a display image (10A) depicting a heating profile (see Fig. 5; “second temperature”), wherein the value of points (30) can be changed (“updated parameter value”) (see 30-2 in Figs. 12-13; [0181]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have added Yamada’s customizable user terminal to Lee’s device in order to obtain the predictable result of changing values of the heating profile to allow a user to customize the heating profile in which an aerosol is appropriately generate (Yamada; [0183]), thereby enhancing the user experience.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Lee as applied to claim 1 above and in further view of Nerudia Limited (EP 3711522; hereby “Nerudia”).
Regarding claim 18, Lee discloses the device as discussed above with respect to claim 1. Moreover, Lee discloses a cigarette (2), and in which the heater may be heated to a desired temperature ([0032]).
However, Lee is silent as to the first temperature is between 330°C and 360 °C, and wherein the second temperature is less than 300°C. Specifically, Lee does not disclose the possible temperatures for the heating temperature T1 or the preheating temperature T2.
Nerudia teaches a heat-not-burn device (abstract) for heating an aerosol-forming substrate that resembles a conventional cigarette ([0067]), comprising a controller (208) configured to control operation of the heater (204) ([0111]) to operate the heater at a first predefined target operating temperature upon turning on the device ([0112]; see Fig. 3) and to heat the heater to a second predefined target temperature when a user draw is detected ([0112]; see Fig. 3; “first temperature”) and to decrease the temperature to the first defined target operating temperature upon detecting that the user is not drawing ([0115]; “second temperature”), wherein the first defined target temperature is between 150 and 280 degrees Celsius as to not form aerosol ([0114]) and the second defined target temperature is between 280 and 360 degrees Celsius, more particularly between 300 and 360 degrees Celsius, to form an aerosol for inhalation ([0115]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have set Lee’s heating temperature T1 and preheating temperature T2 as 300-360°C and 150-280°C respectively as in Nerudia in order to obtain the predictable result of not forming aerosol at the preheating temperature and forming aerosol at the heating temperature (Nerudia; [0114]-[0115]) with the benefit of enhancing the user experience and improve the function of the smoking substitute system (Nerudia; [0014]) and improve the battery life the device (Nerudia; [0018]). Moreover, such a modification involves the mere optimization within prior art conditions. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” MPEP 2144.05(II)(A).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Lee as applied to claim 5 above and in further view of Luo et al. (CN 112931983; see machine translation).
Regarding claim 21, Lee discloses the device as discussed above with respect to claim 5, wherein the heating element is heated from the third temperature to the heating temperature T1 (see annotated Fig. 10).
However, Lee is silent as to wherein the device is configured to heat the heating element from the third temperature to the first temperature in less than 2 seconds. Specifically, Lee is silent as to how fast the heating element reaches the heating temperature T1 from the third temperature.
Luo teaches an atomizer and control method (abstract) wherein the atomizing component at the third preset time t4 reaches the third preset temperature, which is the atomization temperature of the substrate, wherein the third preset temperature is 250 degrees centigrade, and the third preset time is not more than 2 seconds (p. 5, para. 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have applied the known method of heating to the atomization temperature in not more than 2 seconds as in Luo to Lee’s known device that heats to the heating temperature T1 in order to obtain the predictable result of atomizing the cigarette (Luo; p. 5, para. 2) with the benefit of quickly discharging aerosol and reducing user wait time (Luo; p. 2, para. 2).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SONNY V NGUYEN whose telephone number is (571)272-8294. The examiner can normally be reached Monday - Friday; 7:00 AM - 3:00 PM EST.
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/SONNY V NGUYEN/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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