Ex Parte Henry et al

Patent Trial and Appeal Board

Feb 27, 2019

14175391 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/175,391 02/07/2014
26158 7590 03/01/2019
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
FIRST NAMED INVENTOR
Raymond C. Henry
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO.
R60999 10600US.l
(0638.1)
CONFIRMATION NO.
9385
EXAMINER
LUARCA, MARGARET M
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
03/01/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
IPDocketing@wbd-us.com
BostonPatents@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAYMOND C. HENRY,
MICHAEL RYAN GALLOWAY, and
FREDERIC PHILIPPE AMPOLINI 1
Appeal2017-010517
Application 14/175,391
Technology Center 3700
Before JOHN C. KERINS, KEN B. BARRETT, and
ERIC C. JESCHKE, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Raymond C. Henry et al. (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision to reject claims 1-27. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 RAI Strategic Holdings, Inc., a subsidiary of RAI Strategic Holdings, Inc.,
is identified as the real party-in-interest in the Appeal Brief. Appeal Br. 1.
Appeal2017-010517
Application 14/175,391
THE INVENTION
Appellants' invention relates to a charging accessory device, a system
including a charging accessory device, and a method employing a charging
accessory device. Independent claim 13 is illustrative of the claimed
invention and reads as follows:
13. A charging accessory device for an aerosol delivery
device including a control body assemblable with a cartridge,
the control body comprising a control component and a battery,
the charging accessory device comprising:
a housing defining distinct receptacles including a friction-fit
receptacle configured to frictionally engage an outer shell of the
control body and thereby receive the control body, a second
receptacle configured to receive the cartridge, and a further
receptacle configured to receive another, fully assembled
aerosol delivery device;
a power storage device;
a charging interface configured to establish an electrical
connection with the battery and supply electrical power from
the power storage device to the battery to charge the battery;
charge level indicators configured to indicate a charge level of
the battery when the control body is in the friction-fit
receptacle, and a charge level of the power storage device;
a composition level indicator configured to indicate a level of
aerosol precursor composition remaining in the cartridge when
in the second receptacle;
an aerosol delivery device interface configured to enable
communication between the charging accessory device and the
control component of the aerosol delivery device;
a communication interface; and
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Application 14/175,391
processing circuitry configured to control the charging
accessory device to at least:
access usage data for the aerosol delivery device via the
aerosol delivery device interface;
cause, via the communication interface, social data
generated based at least in part on the usage data to be
provided to a social networking service comprising a
community of aerosol delivery device users.
THE REJECTIONS
The Examiner has rejected:
(i) claims 1--4, 11-16, 18-22, and 27 under 35 U.S.C. § I03(a) as
being unpatentable over Alarcon (US 2011/0265806 Al, published
November 3, 2011) in view of Brister (US 2008/0262469 Al, published
October 23, 2008);
(ii) claims 5-8 and 23-26 under 35 U.S.C. § I03(a) as being
unpatentable over Alarcon in view of Brister and Peleg (US 2013/0284192
Al, published October 31, 2013); and
(iii) claims 9, 10, and 17 under 35 U.S.C. § I03(a) as being
unpatentable over Alarcon in view of Brister and Fernando (US
2010/0313901 Al, published December 16, 2010).
ANALYSIS
Claims 1-4, 11-16, 18-22, and 27--Alarcon/Brister
Appellants' arguments are directed generally to independent claims 1,
13, and 19, and no separate substantive arguments are presented for the
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Application 14/175,391
dependent claims. Because Appellants raise the same arguments for claims
1, 13, and 19, we will take claim 13 as representative. Independent claims 1
and 19, and dependent claims 2--4, 11, 12, 14--16, 18, 20-22, and 27, will
stand or fall with claim 13.
The Examiner relies on Alarcon as teaching most of the limitations of
claim 13, and notes that Alarcon does not disclose distinct receptacles for
receiving a control body and a further receptacle for receiving a fully
assembled aerosol device. Final Act. 4. The Examiner cites to Brister as
disclosing a housing having multiple compartments or receptacles to
frictionally hold a medicament delivery device and associated cartridges. Id.
The Examiner concludes that it would have been obvious in view of Brister
to modify the Alarcon charging accessory device to provide multiple
compartments to provide storage for the Alarcon devices as well as
associated accessories. Id. at 5. The Examiner further notes that Brister is
cited as evidence that it is well-known in the art to provide receptacles or
cavities for the purpose of providing additional storage and organization for
accessories and components of the device. Ans. 3.
Appellants argue that Brister does not disclose three distinct
receptacles for holding each of the claimed cartridges, control body, and a
fully assembled control body/cartridge. Appeal Br. 6-7; Reply Br. 2-3.
Appellants additionally argue, under a heading asserting lack of motivation
to combine the teachings, that, even if the references are combined, Brister' s
failure to disclose the three different types of receptacles would result in a
modified Alarcon device that lacks those three different types. Appeal Br.
3-5; Reply Br. 3-5.
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Application 14/175,391
Appellants' argument as to the specific structure disclosed in Brister,
and as to the structure resulting from modifying Alarcon in view of Brister
not having the three claimed type of receptacles is in the nature of requiring
a bodily incorporation of the exact structure disclosed in Brister into
Alarcon. This argument does not address directly the Examiner's findings
regarding what the combined teachings of the references demonstrate would
have been considered to have been obvious to a skilled artisan at the time of
the invention.
As seen in the statements referenced above regarding what the
Examiner concludes would have been obvious, the Examiner applies the
teachings of Brister for its more general teaching of providing receptacles
for the components of the article in question, as well as the assembled article
itself. In the case of the Alarcon device, the components are control bodies
and cartridges, and the assembled article is a control body and cartridge
joined together. Alarcon, Figs. 2A, 2B. Providing receptacles for those
components in a modification of Alarcon in view of Brister yields the
claimed invention. 2
As such, Appellants' arguments thus do not apprise us of error in the
rejection. The rejection of claim 13 is therefore sustained. Independent
claims 1 and 19 and dependent claims 2--4, 11, 12, 14--16, 18, 20-22, and 27
fall with claim 13.
2 We further note that Figure 7 of Brister appears to show different
receptacles for the assembled article as well as for additional cartridges and
other accessories. Brister, Fig. 7; para. 229.
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Application 14/175,391
Claims 5-8 and 23-26--Alarcon/Brister/Peleg
Appellants rely solely on the substantive arguments raised in
connection with the rejection of independent claims 1, 13, and 19, averring
that the errors present in that rejection are present in the instant rejection as
well. Appeal Br. 8-9. For the reasons discussed in the preceding section,
we are not apprised of error in the rejection or of any deficiency in the
combination of the teachings of the references cited in the rejection of claim
13. The rejection of claims 5-8 and 23-26 is sustained.
Claims 9, 10, and 17--Alarcon/Brister/Fernando
Appellants rely solely on the substantive arguments raised in
connection with the rejection of independent claims 1, 13, and 19, in
challenging the rejection of these claims. Appeal Br. 9. For the reasons
discussed relative to those independent claims, we are not apprised of error
in that rejection. The rejection of claims 9, 10, and 17 is sustained.
DECISION
The rejections of claims 1-27 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 ). See 3 7 C.F .R.
§ 1.136(a)(l )(iv).
AFFIRMED
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