RAI Strategic Holdings, Inc.

Patent Trials and Appeals Board

Nov 10, 2020

15061529 - (D) (P.T.A.B. Nov. 10, 2020)

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.
15/061,529 03/04/2016 Wilson Christopher Lamb R60999 11640US.1
(1079.6)
1008
26158 7590 11/10/2020
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
EXAMINER
CAMPBELL, THOR S
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
11/10/2020 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILSON CHRISTOPHER LAMB,
FREDERIC PHILIPPE AMPOLINI, and
RAYMOND CHARLES HENRY JR
Appeal 2020-002078
Application 15/061,529
Technology Center 3700
Before STEFAN STAICOVICI, BRETT C. MARTIN, and
MICHAEL L. WOODS, Administrative Patent Judges.
WOODS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 10–18. Appeal Br. 2. Claims 1–9 are
withdrawn. We have jurisdiction under 35 U.S.C. § 6(b).

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as RAI Strategic
Holdings, Inc. Appeal Br. 1.
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Application 15/061,529

2
We AFFIRM, but designate our decision as including a new ground of
rejection pursuant to our authority under 37 C.F.R. § 41.50(b).CLAIMED
SUBJECT MATTER
The instant application is titled “Flexible Display for an Aerosol
Delivery Device” and describes a delivery device for an electronic cigarette.
Spec. 1. Claim 10 is the sole independent claim before us on appeal. See
Appeal Br. 8–11 (Claims App.). We reproduce independent claim 10 and
dependent claim 18, below, which are illustrative of the claimed subject
matter:
10. A control body coupled or coupleable with a cartridge
that is equipped with a heating element and contains an aerosol
precursor composition, the control body being coupled or
coupleable with the cartridge to form an aerosol delivery device
in which the heating element is configured to activate and
vaporize components of the aerosol precursor composition, the
control body comprising:
at least one housing;
a flexible, emissive display on and contoured to the at least
one housing; and
a control component contained within the at least one
housing and configured to operate in an active mode in which the
control body is coupled with the cartridge, the control component
in the active mode being configured to control the heating
element to activate and vaporize components of the aerosol
precursor composition, the control component being further
configured to control the emissive display to present information
of the cartridge, control body or aerosol delivery device.
18. The control body of Claim 17, wherein the control
component being configured to control the emissive display
includes being configured to control the emissive display to
present an icon that represents the power source and indicates
the amount of charge contained in or consumed therefrom, and
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an icon that represents the aerosol precursor composition and
indicates the amount thereof contained in or consumed from the
at least one housing.
Id. at 13 (Claims App.) (emphasis added).
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REFERENCES
The references relied upon by the Examiner are:
Name Reference Date
Bellinger US 2013/0104916 A1 May 2, 2013
Henry US 2015/0257445 A1 Sept. 17, 2015
REJECTIONS
The following rejections are before us on appeal:
Claims Rejected 35 U.S.C. § Reference(s)/Basis
10 102(a)(2) Bellinger
10–18 103 Henry, Bellinger
Final Act. 2–7.
OPINION
I. Claim 10 – Anticipated by Bellinger
The primary issue is whether Bellinger’s disclosure at paragraph 47
satisfies the claimed limitation “flexible, emissive display.”
In rejecting claim 10 as anticipated by Bellinger, the Examiner finds
that Bellinger discloses the claimed control body comprising, inter alia,
housing 105 with flexible, emissive display 40/330 on and contoured to the
housing. Final Act. 2. To illustrate this finding, we reproduce Bellinger’s
Figure 1, below:
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Figure 1 depicts a perspective view of Bellinger’s “electronic vaporizer that
simulates smoking.” Bellinger ¶ 7. In particular, Figure 1 illustrates
electronic vaporizer 100 including casing 105, connective port 110 for
receiving cartridge 120 via connector 140. See id. ¶ 19. Figure 1 also
depicts display 40 “that displays or renders information, data, and the like.”
See id. ¶ 20 (“The electronic vaporizer 100 can further include a display 140
that displays or renders information, data, and the like.”).2 The Examiner
finds that Bellinger discloses a display that can be an LED screen as well as
disclosing a “display with a flexible property.” Ans. 8 (citing Bellinger ¶
47). The Examiner explains that “it logically follows that Bellinger’s
recitation of a ‘display with a flexible property’ can reasonably be
interpreted to mean ‘an LED screen with [a] flexible property.” Id.
In appealing the rejection, Appellant argues that “Bellinger does not
explicitly or inherently disclose a flexible, emissive display, as per

2 Bellinger’s paragraph 20 refers to display with reference numeral 140,
rather than reference numeral 40. We find this to be a typographical error,
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independent claim 10.” Reply Br. 2. Appellant accuses the Examiner of
relying on “mathematical set theory to argue that Bellinger explicitly
discloses” the claimed limitation. Id. (citing Ans. 8).
Appellant’s argument is not persuasive.
Bellinger explicitly discloses, “[t]he system 400 can further include a
display 430. The term display collectively refers to any component capable
of providing information to a user including . . . visual . . . information. . . .
A suitable visual display . . . can be an LED screen . . . , a display with a
flexible property, among others.” Bellinger ¶ 47 (emphasis added).
We agree with the Examiner that Bellinger’s disclosure of an LED
screen is an “emissive display.” See Ans. 8 (“Bellinger discloses . . . an
emissive display [e.g., LED screen])”; see also Bellinger ¶ 47 (“A suitable
visual display . . . can be an LED screen”); see also
https://www.yourdictionary.com/emissive-display (defining “emissive
display” as “[a] display screen technology that generates its own light. The
primary emissive display method is organic LED . . . .”) (last visited October
30, 2020). We further agree with the Examiner that Bellinger also discloses
a flexible display. See Ans. 8 (“Bellinger discloses . . . a flexible display
[display with a flexible property]”); see also Bellinger ¶ 47 (“a display with
a flexible property”). Finally, we agree with the Examiner that Bellinger’s
display is “contoured to the at least one housing.” See Bellinger Fig. 1
(depicting display 40/140 on flat surface of “housing” 105); see also Final
Act. 2 (finding the same).

however, as 140 is previously referenced as the connector (see id. ¶19) and
Figure 1 itself shows 40 as a display screen.
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As best as we can discern, Appellant’s argument presumes that the
LED display and “display with flexible property” disclosed in paragraph 47
are distinct embodiments that are mutually-exclusive. See Reply Br. 2
(arguing that the Examiner’s reliance on “mathematical set theory” fails to
establish inherency). We find nothing in the record that supports
Appellant’s position, however. Rather, Appellant fails to persuade us of
error in the Examiner’s finding, such as by submitting evidence that an LED
cannot also be a display with a flexible property. See generally Appeal Br.;
see also generally Reply Br.
As such, we agree with the Examiner’s finding that Bellinger’s Figure
1 and paragraph 47 disclose a “flexible, emissive display on and contoured
to the at least one housing.” Accordingly, we affirm the rejection of claim
10 as anticipated by Bellinger.

II. Claims 10–18 – Unpatentable over Henry and Bellinger
The primary issue is whether Henry’s disclosure at paragraph 57
teaches the limitations of dependent claims 14, 16, and 18.
The Examiner rejects claims 10–18 as unpatentable over Henry in
view of Bellinger. Final Act. 4. The Examiner finds that Henry discloses
the claimed limitations with the exception of “the use of a flexible emissive
display.” Id. at 5. The Examiner relies on Bellinger for disclosing “the use
of an LED display having a flexible character wherein the display is
provided on the side of the housing” and reasons that a skilled artisan would
have modified Henry “to provide a flexible LED display on the side of the
housing as suggested by Bellinger in order to maintain the aesthetics of the
aerosol device.” Id.
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In contending the rejection, Appellant relies on the same unpersuasive
argument discussed above regarding Bellinger’s “flexible, emissive display.”
See Reply Br. 3 (“the Examiner factually erred in finding Bellinger discloses
a flexible, emissive display.”).
For the same reason discussed above (supra Part I), Appellant’s
argument is not persuasive, and we affirm the rejection of claims 10–13, 15,
and 17 as unpatentable over Henry in view of Bellinger.
Appellant also presents separate arguments for dependent claims 14,
16, and 18 (Appeal Br. 11–13).
Claim 14 depends indirectly from claim 10 and further recites, “the
emissive display to present an icon that represents the aerosol precursor
composition and indicates the amount thereof contained in or consumed.”
Appeal Br. 10 (Claims App.) (emphasis added).
Claim 16 depends indirectly from claim 10 and further recites, “the
emissive display to present an icon that represents the power source and
indicates the amount of charge.” Id. at 11 (emphasis added).
Claim 18 depends indirectly from claim 10 and further recites, “the
emissive display to present an icon that represents the power source and
indicates the amount of charge contained in or consumed therefrom, and an
icon that represents the aerosol precursor composition and indicates the
amount thereof contained in or consumed from the at least one housing.” Id.
(emphasis added).
The Examiner finds that Henry teaches these limitations. See Ans.
11–13 (citing Henry ¶ 57) (emphasis added). The relevant portion of Henry
discloses:
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As a further example, the user interface 316 may provide one or
more indicators (e.g., indicators 112), such one or more LEDs
(e.g., LED 212), a display, a speaker, and/or other output
mechanism that may be used to indicate an operating status of an
aerosol delivery device, a charge level of a battery, an amount of
aerosol precursor composition remaining in a cartridge that may
be engaged with the control body, and/or to provide other status
information that may be related to operation of an aerosol
delivery device to a user.
Henry ¶ 57 (emphasis added).
The Examiner finds that Henry’s disclosure of “indicators” satisfies
the claimed “icons.” See Ans. 12 (explaining that “an ‘icon’ is well within
lexical semantics absent some special definition of either ‘indicator’ or
‘icon’.”).
In contending the rejection of claims 14, 16, and 18, Appellant argues,
“An ‘icon’ is a pictogram on a display screen that conveys its meaning
through its pictorial resemblance to an object.” See Reply Br. 4–5 (citing
https://en.wikipedia.org/wiki/Icon_(computing), Specification, Fig. 4)
(emphasis added); see also id. at 4–6 (presenting the same arguments for
each of claims 14, 16, and 18). Appellant contends that Henry’s “indicators”
are not “pictograms.” See id. at 5–6.
As to claims 14, 16, and 18, we agree with Appellant that Henry’s
“indicators” do not satisfy the claimed “icons.” In particular, Appellant’s
definition of “icon” and Figure 4 of the Specification both support
Appellant’s construction that the claimed “icon” is a pictogram that
resembles the object to be displayed. See Reply Br. 4–5. Furthermore, such
an interpretation is consistent with the ordinary and customary meaning of
the term “icon” as that of “an image, picture, representation, etc.”
https://www.thefreedictionary.com/icon (last visited November 3, 2020).
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Nevertheless, we determine that a skilled artisan would have modified
Henry’s “indicators” to be pictograms, or “icons,” based on Bellinger’s
teaching of pictures on its display to convey information. Specifically,
Bellinger teaches:
The electronic vaporizer 100 can further include a display
140 that displays or renders information, data, and the like. For
instance, the display 140 can communicate information such as,
a letter, a number, a symbol, a picture, a graphic, a reading, a
measurement, a current, a voltage, a power output, a resistance,
among others. The display 140 can be, for instance, an LED
display.
Bellinger ¶ 20 (bold emphasis omitted, italicized emphasis added); see also
id. at Fig. 1 (depicting display 40/140).
Based on Bellinger’s teaching of using pictures, i.e., icons, to convey
information on a display screen (Bellinger ¶ 20), we conclude that a person
having ordinary skill in the art at the time of the invention would have
modified Henry’s indicators 112 to be pictures or pictograms, i.e., icons, as
taught by Bellinger, to more clearly convey information to a user (Henry ¶
57). For instance, by modifying one of Henry’s indicators 112 to represent a
battery, a user of Henry’s device would have more easily understood that
Henry’s indicator corresponds to remaining battery life. Similarly, by
modifying another one of Henry’s indicators 112 to be a picture representing
a plume of vapor, a user would have more easily understood that the
indicator corresponds to the amount of aerosol precursor remaining. The
proposed modification would have improved Henry’s apparatus by
clarifying the information conveyed to a user.
As to claim 14, modifying Henry’s “indicators” to be pictograms, i.e.,
icons, satisfies the claimed “icon that both represents the aerosol precursor
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composition, and indicates the amount remaining in the cartridge” through
Henry’s disclosure of “one or more indicators . . . may be used to indicate an
operating status of an aerosol delivery device . . . an amount of aerosol
precursor composition remaining in a cartridge.” Henry ¶ 57.
As to claim 16, modifying Henry’s “indicators” to be pictograms, i.e.,
icons, satisfies the claimed “icon that represents the power source and
indicates the amount of charge contained in or consumed therefrom” through
Henry’s disclosure of “one or more indicators . . . to indicate . . . a charge
level of a battery.” Henry ¶ 57; see also Ans. 12 (“The indicator or icon as
disclosed by Henry represents the power source [i.e., battery] and the charge
level of the battery.”).
As to claim 18, modifying Henry’s “indicators” to be pictograms, i.e.,
icons, satisfies the claimed “icons that both represent the power source and
aerosol precursor composition, and indicate the amount remaining in the
cartridge, and the charge level of the battery” through Henry’s disclosure
that “one or more indicators . . . may be used to indicate . . . a charge level
of a battery, an amount of aerosol precursor composition remaining in a
cartridge.” Henry ¶ 57 (emphasis added).
Accordingly, we affirm the rejection of claims 10–13, 15, and 17 as
unpatentable over Henry in view of Bellinger.
We also affirm the rejection of claims 14, 16, and 18 as unpatentable
over Henry in view of Bellinger. Because our affirmance of these three
claims relies on findings and reasoning separate from the original rejection,
however, we designate our affirmance of these claims as a new ground of
rejection under 37 C.F.R. § 41.50(b).

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CONCLUSION
The Examiner’s rejections of claims 10–18 are affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C. §
Reference Affirmed Reversed New
Ground
10 102(a)(2) Bellinger 10
10–18 103 Henry,
Bellinger
10–13, 15,
17
14, 16, 18
Overall
Outcome
10–13, 15,
17
14, 16, 18

TIME PERIOD FOR RESPONSE
This Decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. . . .

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Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED; 37 C.F.R. § 41.50(b)