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 .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“mechanism” to “vary the ratio” in claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
For purposes of examination the “mechanism” will be interpreted as a valve or movable iris (See instant published paragraph [0073]).
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.
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Claim(s) 1-14, 17 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over HEPWORTH (US 2020/0345075) in view of WOIAS et al. (US 2019/0358416).
With respect to claim 1, HEPWORTH discloses an aerosol generating device (Abstract) comprising an aerosol generator, 134, (Paragraph [0037]) for generating an aerosol from an aerosol-generating material, 106, in an aerosol generating region (e.g., region surrounded by aerosol generator 134); a first air pathway (A and B) (Paragraphs [0047], [0048]; Figure 4) passing through the aerosol generating region; a second air pathway (C) not passing through the aerosol generating region (Paragraph [0049]; Figure 4); and an adjustment mechanism, 114, configured to control the amount of air flow through the first pathway (Paragraph [0041]) along with 404, for controlling the amount of air flow through the second air pathway (Paragraphs [0078] and [0079]). The adjustment mechanism adjusts in order to control the draw resistance experienced by the user (Paragraphs [0081] and [0082]) and is controlled by control circuitry (Paragraph [0083])
HEPWORTH discloses that the adjustment mechanism is configured to provide a first ratio of resistance to draw of the first air pathway to the resistance to draw of the second pathway based on a monitored feature (Paragraphs [0081]-[0085]) and change the ratio based on the monitored feature.
HEPWORTH does not explicitly disclose that the feature is draw strength. WOIAS et al. discloses an electronic cigarette (Abstract; Paragraphs [0001]-[0003]) that varies the resistance to draw (Paragraphs [0051], [0053], [0057], [0078]) based on the measured draw strength (Paragraph [0080], [0119]). This allows the inhaler to be controllable using only the users drawing (Paragraph [0121]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to measure the draw strength in HEPWORTH, as taught by WOIAS et al. so that the strength of the draw can vary the resistance to draw, thus allowing the user to control the device using only their draw.
The measured draw strength to set the first ratio represents the first value, while the measured draw strength to set the second ratio represents the second value.
With respect to claims 2 and 3, HEPWORTH discloses that the adjustment mechanism controls the airflow through the first and second air pathways to control the resistance to draw (Paragraphs [0081]-[0082]).
With respect to claim 4, HEPWORTH discloses that the adjustment mechanism is configured to provide a first ratio of resistance to draw of the first air pathway to the resistance to draw of the second pathway based on a monitored feature (Paragraphs [0081]-[0085]) and change the ratio based on the monitored feature.
HEPWORTH does not explicitly disclose that the feature is draw strength. WOIAS et al. discloses an electronic cigarette (Abstract; Paragraphs [0001]-[0003]) that varies the resistance to draw (Paragraphs [0051], [0053], [0057], [0078]) based on the measured draw strength (Paragraph [0080], [0119]). This allows the inhaler to be controllable using only the users drawing (Paragraph [0121]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to measure the draw strength in HEPWORTH, as taught by WOIAS et al. so that the strength of the draw can vary the resistance to draw, thus allowing the user to control the device using only their draw.
The measured draw strength to set the first ratio represents the first value, while the measured draw strength to set the second ratio represents the second value.
With respect to claim 5, HEPWORTH discloses that the amount of air passing through the first airflow path can be varied to affect the visibility of the airflow (Paragraphs [0056], [0070]). Thus, the scope of HEPWORTH includes a first ratio that can be set to have higher airflow through the first airflow path and lower airflow through the second airflow path. The scope also includes a second ratio where the airflow through the first path is less than that of the second airflow path. While WOIAS et al. doesn’t specify that greater draw strength leads to greater amounts, and therefore greater visibility, of aerosol. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to set the first value (e.g., greater draw strength) to be higher than the second value, so that when the user takes a larger puff, they can generate a greater aerosol volume. This could be for aesthetic purposes, or the user may desire a greater dose of nicotine.
With respect to claim 6, HEPWORTH discloses that the resistance to draw of the first airflow path is determined by the inlet size of the first opening (e.g., cross-section of the narrowest section) and the resistance to draw of the second airflow path is determined by the inlet size of the second opening (e.g., cross-section of the narrowest section) (Paragraphs [0063]-[0064], [0081] and [0082]) and the adjustment mechanism varies the relative cross-sections of each to adjust the resistance to draw (Paragraphs [0081]-[0083]).
With respect to claim 7, WOIAS et al. discloses that based on the measured draw strength, the draw resistance is changed (Paragraphs [0051], [0053], [0057], [0078], [0080], [0119]). Thus, the measured value that achieves a desired valve setting implicitly represents a value above a threshold value.
With respect to claim 8, HEPWORTH discloses that the valve for the second airflow path is fully closed (Paragraph [0082]). HEPWORTH discloses that the amount of air passing through the first airflow path can be varied to affect the visibility of the airflow (Paragraphs [0056], [0070]). Thus, the scope of HEPWORTH includes a first ratio that can be set to have higher airflow through the first airflow path and lower airflow through the second airflow path. The scope also includes a second ratio where the airflow through the first path is less than that of the second airflow path. While WOIAS et al. doesn’t specify that greater draw strength leads to greater amounts, and therefore greater visibility, of aerosol. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to close the second airflow path valve upon the larger draw, so that when the user takes a larger puff, they can generate a greater aerosol volume. This could be for aesthetic purposes, or the user may desire a greater dose of nicotine.
WOIAS et al. discloses that based on the measured draw strength, the draw resistance is changed (Paragraphs [0051], [0053], [0057], [0078], [0080], [0119]). Thus, the measured value that achieves a desired valve setting implicitly represents a value above a threshold value.
With respect to claim 9, HEPWORTH discloses that the first and second airflow paths are fluidly connected at their downstream portion to a commo airflow path comprising a mouthpiece (Paragraphs [0042], [0075]; Figure 4).
With respect to claim 10, WOIAS et al. also discloses an electronically controlled adjustment mechanism (Paragraph [0054]) and the draw strength is inferred (e.g., estimated) based on measured values
With respect to claim 11, HEPWORTH discloses that the adjustment mechanism can also be based on user input (Paragraph [0012], [0057]).
With respect to claim 12, HEPWORTH discloses that the amount of air passing through the first airflow path can be varied to affect the visibility of the airflow (Paragraphs [0056], [0070]). Thus, the scope of HEPWORTH includes a first ratio that can be set to have lower airflow through the first airflow path and higher airflow through the second airflow path.
The lower visibility mode represents the claimed “discrete mode”
With respect to claim 13, HEPWORTH discloses an aerosol generating system (Abstract) comprising an aerosol generator, 134, (Paragraph [0037]) for generating an aerosol from an aerosol-generating material, 106, in an aerosol generating region (e.g., region surrounded by aerosol generator 134); a first air pathway (A and B) (Paragraphs [0047], [0048]; Figure 4) passing through the aerosol generating region; a second air pathway (C) not passing through the aerosol generating region (Paragraph [0049]; Figure 4); and an adjustment mechanism, 114, configured to control the amount of air flow through the first pathway (Paragraph [0041]) along with 404, for controlling the amount of air flow through the second air pathway (Paragraphs [0078] and [0079]). The adjustment mechanism adjusts in order to control the draw resistance experienced by the user (Paragraphs [0081] and [0082]) and is controlled by control circuitry (Paragraph [0083])
HEPWORTH further discloses a method of controlling the system by providing the aforementioned adjustment mechanism and adjusting the adjusting mechanism to vary the ratio of the first and second airflow pathways to adjust the resistance to draw (Paragraphs [0081]-[0084]).
HEPWORTH discloses that the adjustment mechanism is configured to provide a first ratio of resistance to draw of the first air pathway to the resistance to draw of the second pathway based on a monitored feature (Paragraphs [0081]-[0085]) and change the ratio based on the monitored feature.
HEPWORTH does not explicitly disclose that the feature is draw strength. WOIAS et al. discloses an electronic cigarette (Abstract; Paragraphs [0001]-[0003]) that varies the resistance to draw (Paragraphs [0051], [0053], [0057], [0078]) based on the measured draw strength (Paragraph [0080], [0119]). This allows the inhaler to be controllable using only the users drawing (Paragraph [0121]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to measure the draw strength in HEPWORTH, as taught by WOIAS et al. so that the strength of the draw can vary the resistance to draw, thus allowing the user to control the device using only their draw.
With respect to claim 14, HEPWORTH discloses that the adjustment mechanism is electronically controlled (Paragraphs [0083]-[0085]). HEPWORTH does not explicitly disclose adjusting the adjustment mechanism based on draw strength. WOIAS et al. discloses an electronic cigarette (Abstract; Paragraphs [0001]-[0003]) that varies the resistance to draw (Paragraphs [0051], [0053], [0057], [0078]) based on the measured draw strength (Paragraph [0080], [0119]). This allows the inhaler to be controllable using only the users drawing (Paragraph [0121]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to measure the draw strength in HEPWORTH, as taught by WOIAS et al. so that the strength of the draw can vary the resistance to draw, thus allowing the user to control the device using only their draw.
The measured draw strength to set the first ratio represents the first value, while the measured draw strength to set the second ratio represents the second value.
WOIAS et al. also discloses an electronically controlled adjustment mechanism (Paragraph [0054]) and the draw strength is inferred (e.g., estimated) based on measured values
With respect to claim 17, HEPWORTH discloses an aerosol generating device (Abstract) comprising an aerosol generator, 134, (Paragraph [0037]) for generating an aerosol from an aerosol-generating material, 106, in an aerosol generating region (e.g., region surrounded by aerosol generator 134); a first air pathway (A and B) (Paragraphs [0047], [0048]; Figure 4) passing through the aerosol generating region; a second air pathway (C) not passing through the aerosol generating region (Paragraph [0049]; Figure 4); and an adjustment mechanism, 114, configured to control the amount of air flow through the first pathway (Paragraph [0041]) along with 404, for controlling the amount of air flow through the second air pathway (Paragraphs [0078] and [0079]). The adjustment mechanism adjusts in order to control the draw resistance experienced by the user (Paragraphs [0081] and [0082]) and is controlled by control circuitry (Paragraph [0083])
HEPWORTH discloses that the adjustment mechanism is configured to provide a first ratio of resistance to draw of the first air pathway to the resistance to draw of the second pathway based on a monitored feature (Paragraphs [0081]-[0085]) and change the ratio based on the monitored feature.
HEPWORTH does not explicitly disclose that the feature is draw strength. WOIAS et al. discloses an electronic cigarette (Abstract; Paragraphs [0001]-[0003]) that varies the resistance to draw (Paragraphs [0051], [0053], [0057], [0078]) based on the measured draw strength (Paragraph [0080], [0119]). This allows the inhaler to be controllable using only the users drawing (Paragraph [0121]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to measure the draw strength in HEPWORTH, as taught by WOIAS et al. so that the strength of the draw can vary the resistance to draw, thus allowing the user to control the device using only their draw.
The measured draw strength to set the first ratio represents the first value, while the measured draw strength to set the second ratio represents the second value.
With respect to claim 18, HEPWORTH discloses that at least part of the first air pathway is provided in the device (Paragraphs [0047]-[0049]; Figure 4; pathways A and B). The adjustment mechanism, (e.g., 114 and 114a, and 404 and 404a) is provided in the device and is arranged to vary the ratio of the resistance to draw of the first pathway to the resistance to draw of the second air pathway by varying the size of the opening of each pathway (Paragraphs [0051]-[0055] and [0079]-[0084]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEX B EFTA whose telephone number is (313)446-6548. The examiner can normally be reached 8AM-5PM EST M-F.
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/ALEX B EFTA/Primary Examiner, Art Unit 1745
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