Ex Parte Henry et al

Patent Trials and Appeals Board

Jun 20, 2019

14209191 - (D) (P.T.A.B. Jun. 20, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/209,191 03/13/2014
26158 7590 06/24/2019
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
FIRST NAMED INVENTOR
Raymond Charles Henry Jr.
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. CONFIRMATION NO.
R60999 2920US.l (0412.5) 1055
EXAMINER
CALANDRA,ANTHONYJ
ART UNIT PAPER NUMBER
1748
NOTIFICATION DATE DELIVERY MODE
06/24/2019 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 CHARLES HENRY JR. and
FREDERIC PHILIPPE AMPOLINI
Appeal 2018-006900
Application 14/209, 191
Technology Center 1700
Before CATHERINE Q. TIMM, BEYERL YA. FRANKLIN, and
BRIAND. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-7 and 26-28. We have jurisdiction. 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Appellant is the Applicant, R.J. Reynolds Tobacco Company. The Appeal
Brief identifies RAI Strategic Holdings, Inc. as the real party in interest and
notes that RAI Strategic Holdings, Inc. is a subsidiary of RAI Innovations
Company. Appeal Br. 1.
Appeal 2018-006900
Application 14/209, 191
STATEMENT OF THE CASE2
Appellant describes the invention as relating to an aerosol delivery
device such as a smoking article. Spec. 1 :7-12. In particular, Appellant
describes that a user may control the device by providing a puff input with
certain characteristics such as a total number of puffs, interval between
puffs, or force of a puff. Id. at 24:21-27. The puff input can then be used to
perform a control function such as, for example, displaying an indication of
remaining aerosol precursor in the device's cartridge or displaying battery
charge level. Id. at 25:9-14. The puff input could also modify the device's
configuration settings (such as setting amount of aerosol precursor vaporized
per puff). Id. at 25 :21-28. Claim 1, reproduced below with emphases added
to certain key recitations, is the only independent claim on appeal and is
illustrative of the claimed subject matter:
1. An aerosol delivery device comprising:
a puff sensor configured to detect a puff input to the
aerosol delivery device;
a heater configured to heat aerosol precursor composition
to form an inhalable substance;
and
processing circuitry coupled with the puff sensor and
heater, wherein the processing circuitry is configured to cause
the aerosol delivery device to at least:
determine a characteristic of the puff input;
determine a control function having a defined
association with the characteristic; and
2 In this Decision, we refer to the Final Office Action dated July 14, 2017
("Final Act."), the Appeal Brief filed January 5, 2018 ("Appeal Br."), the
Examiner's Answer dated May 4, 2018 ("Ans."), and the Reply Brief filed
June 26, 2018 ("Reply Br.").
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Appeal 2018-006900
Application 14/209, 191
control power supplied to the heater to heat the
aerosol precursor composition, and perform the
control function, in response to the puff input,
wherein in at least one other instance in which
another puff input does not have the characteristic, the
aerosol delivery device is caused to control power
supplied to the heater to heat the aerosol precursor
composition, but does not perform the control function.
Appeal Br. 6 (Claims App.).
REJECTION
On appeal, the Examiner maintains the rejection of claims 1-7 and
claims 26-28 under 35 U.S.C. § 102 as anticipated by Cohen et al., US
2011/0036346 Al, Feb. 17, 2011 ("Cohen"). Final Act. 2-3. Alternatively,
the Examiner rejects claims 1-7 and claims 26-28 under 35 U.S.C. § 103 as
obvious over Cohen. Id.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t
has long been the Board's practice to require an applicant to identify the
alleged error in the examiner's rejections."). After considering the evidence
presented in this Appeal and each of Appellant's arguments, we are not
persuaded that Appellant identifies reversible error. Thus, we affirm the
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Appeal 2018-006900
Application 14/209, 191
Examiner's rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Appellant argues rejections of all claims as a group. See Appeal Br.
3-5. Therefore, consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv)
(2013), we limit our discussion to claim 1, and all other claims on appeal
stand or fall together with claim 1.
On appeal, the Examiner rejects claim 1 as anticipated by ( or,
alternatively, obvious over) Cohen. Final Act. 2-3. The Examiner finds that
Cohen discloses an input device with a pressure transducer that acts as a puff
sensor configured to detect puff input. Id. at 3 ( citing Cohen). The
Examiner finds that Cohen discloses an atomizer and that "[p Jower is
supplied to the device during puffing." Id. The Examiner finds that Cohen
teaches puff circuitry that can determine a puff characteristic. Id. In
particular, the Examiner finds that Cohen teaches multiple modes and that
modes can be controlled by a sequence of puffs in various patterns. Id. at 4.
Appellant first argues that Cohen does not teach that its indicator light
20 and audio signal device 128 are associated with any puffing pattern (in
claim 1, a characteristic of the puff input). Appeal Br. 4. Cohen, however,
teaches that its devices are programmable (Cohen ,-J 33) and may be
programmed by, for example "sequentially inhaling and/or exhaling through
the orifice 18 in various patterns or combinations" (id. ,-i 35). The
programming could include, for example, changing the device from a mode
that makes use of indicator light 20 to military mode where the light is off.
Id. ,-i,-i 46, 50-51. The preponderance of the evidence therefore supports the
Examiner's position that Cohen teaches determining a characteristic of puff
input, determining a control function having a defined association with the
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Appeal 2018-006900
Application 14/209, 191
characteristic, and performing the control function, in response to the puff
input. Ans. 3-5.
Appellant admits that Cohen discloses a sequence of inhalations or
exhalations with a pattern may be used to program its control electronics but
argues that Cohen does not disclose that this sequence "also causes the
inhalation device to control power to its atomizing device and power its
indicator light and audio signal device." Appeal Br. 5; see also Reply Br. 2.
Cohen, however, discloses that puffing will activate the "atomizing device
108," and Cohen also refers to the atomizing device 108 as an "atomizing
heating coil 108." Cohen ,i,i 31, 40. The best reading of these paragraphs of
Cohen, considering the context Cohen provides as a whole, is that no
particular sequence of puffing ( or particular lack of sequence) is necessary to
activate the atomizer. Cohen also discloses, as explained above, that puffing
in a particular sequence can program the device (by, for example, changing
the device's mode to a mode with lights to military mode). See, e.g., Cohen
,i 35; Ans. 3-5. The preponderance of the evidence, therefore, supports the
Examiner's position that Cohen discloses "control power supplied to the
heater to heat the aerosol precursor composition, and perform the control
function, in response to the puff input."
Because Appellant does not identify error in the Examiner's rejection,
we sustain the Examiner's rejection of claims 1-7 and 26-28 as anticipated
by Cohen.
Appellant's arguments regarding obviousness are substantially the
same as those addressed above and, therefore, also do not persuade us of
Examiner error. Appeal Br. 5. We, thus, also sustain the Examiner's
alternative rejection of claims 1-7 and 26-28 as obvious over Cohen.
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Appeal 2018-006900
Application 14/209, 191
DECISION
For the above reasons, we affirm the Examiner's rejections of
claims 1-7 and 26-28.
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).
AFFIRMED
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