LOEC, Inc.

Patent Trials and Appeals Board

Jan 4, 2021

2020004970 (P.T.A.B. Jan. 4, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/507,685 10/06/2014 Ramon Alarcon 065887-000510 3102
103376 7590 01/04/2021
Dykema Gossett PLLC
4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
EXAMINER
CRAWLEY, TALIA F
ART UNIT PAPER NUMBER
3687
NOTIFICATION DATE DELIVERY MODE
01/04/2021 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):
MN-IPmail@dykema.com
patents@dykema.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RAMON ALARCON and
CHRISTOPHER KEPNER

Appeal 2020-004970
Application 14/507,685
Technology Center 3600
____________

Before DONALD E. ADAMS, RICHARD M. LEBOVITZ, and
MICHAEL A. VALEK, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
The Examiner rejected claims 1, 3, 5, 6, 8–16, 18, 20, 21, 23–30, 37,
and 38 under 35 U.S.C. § 103(a) as obvious. Pursuant to 35 U.S.C. § 134(a),
Appellant appeals from the Examiner’s decision to reject the claims.1 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Fontem Holdings 4 B.V. as the real party
in interest. Appeal Br. 1.
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STATEMENT OF THE CASE
The Examiner rejected claim 1, 3, 5, 6, 8–16, 18, 20, 21, 23–30, 37,
and 38 under 35 U.S.C. § 103(a) in the Final Office Action as obvious in
view of Alarcon et al. (US 2011/0265806 A1, published Nov. 3, 2011)
(“Alarcon”), Gorelick et al. (US 2013/0319439 A1, published Dec. 5, 2013)
(“Gorelick”), and Showers et al. (US 2014/0365304 A1, published Dec. 11,
2014) (“Showers”). Final Act. 4.
There are two independent claims, claims 1 and 16. Claim 1 is copied
below, with bracketed annotations added to number the limitations in the
claim and indentations added to the “wherein” clauses.
1. A retail system for an electronic smoking device, the
system comprising
[1] a charging pack configured to hold or charge the
electronic smoking device, the charging pack comprising pack
data;
[2] a point-of-sale device configured to facilitate sales of
at least one of the charging pack or the electronic smoking
device, the point-of-sale device comprising point-of-sale data;
[3] a smart phone configured to communicate with the
charging pack or the point-of-sale device, the smart phone
comprising smart-phone data; and
[4] a communication network communicatively linked to
the charging pack, the point-of-sale device, and the smart
phone;
[5] wherein the communication network is configured to
determine a retail signal based on at least one of the pack data,
the point-of-sale data, and the smart-phone data;
[6] wherein the communication network is further
configured to provide the retail signal to at least one of the
electronic smoking device, the charging pack, the point-of-sale
device, the smart phone, or a vendor program;
[7] wherein the retail signal comprises an inducement to
purchase at least sale device comprises a kiosk;
[8] wherein the point-of-sale device comprises a kiosk;
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[9] wherein the kiosk is configured to communicate or
display the retail signal to a user of the electronic smoking
device;
[10] wherein one of the charging pack or the kiosk is
configured to broadcast the pack data or the point-of-sale data
via a radiofrequency communication; and
[11] wherein the other of the charging pack or the kiosk
is configured to receive the pack data or the point-of-sale data
via the radiofrequency communication.

CLAIM 1
Claim 1 is directed to a retail system for an electronic smoking device.
The system comprises a charging pack for the electronic smoking device, a
point-of-sale device, and a smart phone, each which are each
communicatively coupled by a communication network. See Claim 1,
limitations [1]–[4]. The network determines a retail signal based on data
from the pack, the point-of-sale device, and the smart phone (limitation [5])
and also provides the signal to at least one of the electronic smoking device,
the pack, the point-of-sale device, the smart phone, or a vendor program
(limitation [6]). The retail signal comprises “an inducement to purchase at
least one of the electronic smoking device or the charging pack” (limitation
[7]). The Examiner referred to this inducement as an “offer” because that is
the term used in the cited prior art. Final Act. 5, 6–7; see also Ans. 14.
The point-of-sale device comprises a “kiosk” (limitation [8]). The
kiosk is configured to communicate or display the offer to the user of the
smoking device (limitation [9]).
Data can be communicated (“broadcast” and “receive[d]”) between
the pack and kiosk via radiofrequency communication (limitations [10] and
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[11]), as well as between the point-of-sale device, itself, of which the kiosk
is part.
Claim 5 gives examples of the type of data that is broadcast from the
pack:
the pack data comprises at least one of the following: a pack
barcode, a pack serial number, a package, a battery life of the
pack, a number of cartridges remaining in the pack, a smoke
juice level of one or more electronic smoking devices stored
within the pack, a flavor of smoke juice used in one or more
electronic smoking devices stored within the pack, a location of a
user of the pack, a number of puffs taken on one or more
electronic smoking devices stored within the pack, and an
average length of puffs taken on one or more electronic smoking
devices stored within the pack.
In other words, the data broadcast from the pack comprises information that
could be used to determine what the user of the electronic smoking device
may need.
Claim 6 gives examples of the type of point-of-sale data that is
broadcast from the kiosk:
inventory of the point-of-sale device, a length of time that the
charging pack or the electronic smoking device has been on
sale, and a sales history of the point-of-sale device.
Appeal Br. 14, Claims App.
Thus, the pack can broadcast to the kiosk that it is low on smoke juice
and the type of smoke juice flavor the user of the device has in the electronic
cigarette. The kiosk can receive the pack data and broadcast to the pack the
inventory of the point-of-sale device, e.g., whether the products are available
at the kiosk. Because the kiosk is part of the point-of-sale device and the
point-of-sale comprises the point-of-sale data, the claim does not exclude the
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kiosk pack from receiving the point-of-sale data from the point-of-sale
device, itself.
DISCUSSION
The Examiner found that Alarcon describes a retail system for an
electronic smoking system that comprises a charging pack for the smoking
device, a point-of-sale device, and a smart phone which are
communicatively linked by a communication network as required by
limitations [1]–[4] of claim 1. Final Act. 4–5. The Examiner also found that
Alarcon describes determining a retail signal as limitation [5] of the claim
and providing the signal to the devices as in limitation [6] of the claim.
Final Act. 5.
The Examiner further found that Gorelick describes a digital market
system for electronic cigarette users which comprises a point-of-sale device
with point-of-sale data as recited in limitation [2] of the claim and a retail
signal to induce users to buy electronic cigarette products as in limitations
[6] and [7] of the claim. Final Act. 5.
The Examiner acknowledged that the neither Alarcon nor Gorelick
expressly describes the kiosk of limitations [7] and [8] of the claim that
broadcasts and receives data as in limitations [9]–[11] of the claim. Final
Act. 6. However, the Examiner found that Showers describes “a system and
method for cross device geolocation sensing to geotarget offers, further
comprising wherein the point of sale device is a kiosk.” Final Act 6. The
Examiner also found that the system described in Showers performs the
broadcasting and receiving data functions recited in the claim. Final Act. 7.
The Examiner reasoned that it would have been obvious to one of
ordinary skill in the art at the time of filing to combine Showers’s teaching
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of a kiosk with Alarcon and Gorelick “because such a combination would
have enabled the user to monitor sales associated with a plurality of
customers, and forecast inventory and refine advertising efforts.” Final Act.
7.
The Examiner found that independent claim 16 has similar limitations
to claim 1, and rejected it for the same reasons based on the same
combination of publications. Final Act. 8.
Appellant contends that the combination of Alarcon, Gorelick, and
Showers do not disclose, teach, or suggest limitations [10] and [11] of claim
1. Appeal Br. 7. Specifically, Appellant argues that Showers discloses “that
a mobile user device can be configured to provide offers via a
radiofrequency communication,” but does not “disclose, teach, or suggest
that a charging pack/electronic smoking device or a kiosk is configured to
broadcast/receive data . . . via a radiofrequency communication.” Id.
Appellant also states that the kiosk in Showers is not configured to broadcast
and receive data. Id. at 8.
We do not agree with Appellant that the Examiner erred in finding
that the combination of Alarcon, Gorelick, and Showers reasonably suggests
limitations [10] and [11] of claim 1 in which data is broadcast and received
between a kiosk and a charging pack of an electronic cigarette device.
As discussed by the Examiner, Alarcon describes sharing data
between different devices:
The data stored in the pack 200 (e.g., the usage information, the
product information, the information and/or the like) may be
shared with other devices and/or entities (e.g., vendors,
healthcare service providers, social networks and/or the like).
For example, FIG. 9 shows a conceptual overview of a system
300 for exchanging data of the pack 200 over various
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communication channels, constructed according to the
principles of the disclosure. The system 300 may be a network
of a plurality of communication devices, such as, e.g., one or
more packs 200 (e.g., a first pack 200A owned by a first user
310A, a second pack 200B owned by a second user 310B
and/or the like), one or more computers 320 (e.g., a desktop PC
320A, a laptop PC 320B, a mobile phone (not shown), a
personal data assistant (PDA) (not shown), a tablet PC (not
shown) and/or the like) and/or the like, that are connected to
each other via various wired and/or wireless communication
channels 360 (e.g., LAN, WAN, Internet, intranet, Wi-Fi
network, Bluetooth network, cellular network and/or the like).
Alarcon ¶ 75 (emphasis added).
Therefore, as found by the Examiner, Alarcon discloses that data
stored in pack “may be shared” with a “vendor,” which the Examiner
properly found to meet the limitation of “the charging pack . . . configured to
broadcast the pack data.” See also Alarcon ¶ 77 (“Based on the usage data,
the pack 200A may automatically send an order request to the vendor 340
when the user 310A needs more disposable ESDs or a new supply of the
second bodies 100B.”).
Alarcon also discloses the “exchange” of data between devices.
Alarcon ¶ 75 (“[Figure] 9 shows a conceptual overview of a system 300 for
exchanging data of the pack 200 over various communication channels.”).
Figure 9 of Alarcon shows vendor 340 and pack 200A exchanging
information data via “communication channels,” which the Examiner found
is broadcasting and receiving data between a pack and a vendor. Appellant
acknowledges the disclosure in Alarcon cited by the Examiner, but argues
that the data is not “configured to broadcast/receive pack data or point of
sale data to/from the kiosk, as similarly claimed.” Reply Br. 3. As explained
below, this argument is not persuasive.
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The point-of-sale device in rejected claim 1 comprises the kiosk.
Alarcon teaches the data can be exchanged between a pack and a “vendor,”
and that the pack can send an order request to the vendor. Alarcon ¶¶ 75, 77.
Alarcon also teaches that vendor can communicate with a retailer where a
smoker can pick up purchases. Alarcon ¶ 92. A “vendor” was reasonably
found by the Examiner to serve as a “point-of-sale” device. While Alarcon
does not teach a kiosk as required by limitations [8]–[11] of claim 1, the
Examiner recognized this deficiency and further cited both Showers and
Gorelick.
Showers discloses:
Other examples of data identifying a wireless environment
includes identifiers of a Bluetooth™ transmitter of the other
computing device or a near field communication identifier
associated with the other computing device. In some cases, the
user may designate such an identifier by using a configuration
interface of native offers application on the mobile user device
to select among such identifiers in range when proximate the
other computing device to create such a designation in the
mobile user device. In another example, the wireless
environment is identified by a Bluetooth beacon, such as a
Bluetooth Low Energy™ beacon that indicates proximity to the
other computing device, such as an in-store Bluetooth beacon
that indicates proximity to a point-of-sale terminal or kiosk, or
an at-home beacon. . . . In some cases, the other computing
device is a point-of-sale terminal, or in other cases, the other
computing device is a specific home computer known to be on
the same wireless network as the beaconing device.
Showers ¶ 190 (emphasis added).
As discussed in the disclosure reproduced above, Showers expressly
describes a mobile device communicating with a point-of-sale device, such
as a kiosk. See also Final Act. 6–7; see also Ans. 6–7. Thus, Showers
teaches the kiosk of the claims.
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The Examiner also cited Gorelick as meeting the limitations of the
claim, specifically referring to paragraphs 62 and 90–92. Final Act. 5.
Gorelick teaches:
The e-Cig may have the ability to determine the cartomizer’s
usage percentage; the ability to communicate with the
smartphone; and the ability to develop applications to enable
the implementation of digital marketing applications whose
main objectives may include maximizing the average revenue
per user and maximizing customer retention.
Gorelick ¶ 91.
Location information may be used to present to the user all
retail locations in the immediate surroundings that sell
cartomizers. The retailers may support online purchase pickups
and the purchase/payment can be executed immediately so all
the smoker has to do is pick-up the purchased item from the
nearby retail outlet.
Gorelick ¶ 92.
Thus, with respect to the broadcast and receiving limitations [10] and
[1] of the claim, the concept of a mobile user communicating data about the
pack to the point-of-sale device (the “retailer”) is expressly described in
Gorelick. For example, consider rejected dependent claim 5 in which a
“number of cartridges remaining pack” is pack data that is broadcast to the
kiosk and compare this to Gorelick where cartomizer data (the cartomizer is
involved in misting the smoke juice for inhalation) is sent to a retailer via an
application on the mobile device for the purpose of “maximizing the average
revenue per user and maximizing customer retention.” Gorelick ¶¶ 91, 92.
Gorelick also discloses presenting the retail information back to the user
which can include the available inventory at the retailer location. Gorelick
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¶ 92. Compare rejected dependent claim 6 which recites the point-of-sales
data can include “inventory of the point-of-sale device.” A more detailed
implementation of such communication is described in Shower, including
using a kiosk as a point-of-sale device. Showers ¶ 192 (reproduced above).
The Examiner therefore had a reasonable basis for finding that the cited
publications, when combined, reasonably suggest limitations [10] and [11]
of the claim. Appellant did not in its Appeal Brief address these specific
disclosures in the cited publications and identify a deficiency in them.
Appellant also argues that there is no motivation to combine Alarcon
and Gorelick with Showers. Appeal Br. 9. Appellant states “Showers did not
do anything to teach or enable” sales activities” and “[t]herefore, one of
ordinary skill in the art would not have had the alleged motivation — or any
motivation – to combine Showers with Alarcon/Gorelick.” Id. at 10.
We are not persuaded by this argument that the Examiner erred. As
the Examiner explained:
[Showers] supports the use of user data to provided targeted
offers to users for items within a retail establishment. The
examiner submits that the implementation of the disclosure of
Showers et al within the disclosure of the previously applied
prior art would enable the communication and redemption of
offers to a user via their electronic smoking device. The
examiner submits that all three references disclose the storage
and sharing of information between devices, and wherein said
sharing of data is for the purpose of effectuating a sale.
Ans. 16–17.
Appellant’s responds that there is no “‘articulated reasoning’ or
‘rationale underpinning’ to support a reason” to combine the Showers with
Alarcon and Gorelick. Reply Br. 4. But, the Examiner thoroughly explained
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the reasoning in the Final Action on pages 7–8 and further in the Answer as
reproduced above.
Appellant’s argument regarding the Examiner’s interpretation of
claim 1 in view of the Specification have been considered, but are not found
persuasive because all the specific limitations in the claim have been
identified in the prior art, and therefore reliance on the Specification is not
necessary.
In sum, the Examiner identified all the claim limitations in Alarcon,
Gorelick, and Showers, and provided a reason for combining the disclosures
to have arrived at the system recited in claim 1. Appellant contends the
Examiner erred, but did not address the specific disclosures cited by the
Examiner nor identify any persuasive error in the Examiner’s fact-finding or
reasoning. Accordingly, the obviousness rejection of claim 1 is affirmed.
Claim 16 has the substantially the same limitations as claim 1 and falls for
the same reasons. Claim 3, 5, 6, 8–16, 18, 20, 21, 23–30, 37, and 38 were
not argued separately and therefore fall with claims 1 and 16.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 5, 6, 8–
16, 18, 20,
21, 23–30,
37, 38
103(a) Alarcon, Gorelick,
Showers
1, 3, 5, 6, 8–
16, 18, 20,
21, 23–30,
37, 38

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TIME PERIOD OF RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED