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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 8/5/2025 has been entered.
Response to Amendment
This office action is in response to Applicant’s amendment filed 8/5/2025.
Claims 1 and 9 are amended.
Claims 2, 5-8, 10-11, and 18-24 are cancelled.
Claims 1, 3-4, 9, and 12-17 are pending.
Applicant has overcome the rejection of claim 8 under 35 U.S.C. 112(d) for failing to further limit the subject matter of the claim upon which it depends by amending the claim in reply filed 8/5/2025.
Response to Arguments
Applicant' s arguments, see pages 6-8, filed 8/5/2025, with respect to the rejections of claims 1, 3, 8-9, and 14-16 under 35 U.S.C. 103 over Jones in view of Shwadchuck and Abrams and claims 1, 8-9, and 14-16 under 35 U.S.C. 103 over Jones in view of Rostami and Abrams have been fully considered and are persuasive. Applicant has amended claim 1 to include the limitation “wherein the aerosol generator…is located at a base of the receptacle such that the aerosol generator is opposite the first opening” and “wherein the aerosol generator comprises an airflow generator adapted to…introduce the aerosol payload directly into the partially enclosed central space.” The prior art of record, Jones, fails to disclose such limitations. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of newly cited prior art (see below).
Claim Objections
Claim 9 is objected to because of the following informalities:
Regarding claim 9, the term “receptable” (line 4) should be changed to “receptacle.”
Appropriate correction is required.
Claim Rejections - 35 USC § 103
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.
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 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.
Claims 1, 3, 9, and 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Tomono et al. (US 2008/0223953) in view of Jones (US 2014/0102463; of record).
Regarding claim 1, Tomono discloses a mist generator (abstract; Fig. 22A; “e-liquid aerosol provision system”) comprising:
a liquid atomization means (05; “aerosol generator”) for generating a mist to be discharged ([0167]; “generate an aerosolized payload”), wherein the liquid atomization means comprises a heating means (HT5; [0501]; “heater”) and a liquid container (20; [0501]; “e-liquid reservoir”); and
a lower housing (06) and a mist discharge tube (80) (collectively “receptacle”) with an opening (83; “first opening”), the lower housing and mist discharge tube forming a partially enclosed central space (see red box in annotated Fig. 22A) configured to hold at least a portion of the mist (m, ma; Fig. 24B; [0481], describing that mist droops around the discharge opening 83),
wherein as described above, the present embodiment provides excellent maintainability because of its easy decomposition ([0499]) such that in disassembly, when the discharge tube is removed, all portions that tend to be dirty can be removed and cleaned, such as the air flow generating means and small liquid containers ([0326]-[0327], [0499]; see also Fig. 23; “removably positioned inside the partially enclosed space formed by the receptacle”) and is located at a base of the receptacle (see annotated Fig. 22A; interpreted as the bottom of the lower housing”) opposite the opening (see Fig. 23),
wherein the liquid atomization means comprises an air flow generating means (70; “airflow generator”) adapted to draw air through the aerosol generating means and introduce the mist (m) directly into the partially enclosed central space (ma) located in the mist discharge tube (see arrow in Fig. 22A; see also Fig. 24B).
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However, Tomono does not explicitly teach the receptacle resembling a drinking glass.
Jones teaches a personal vapor device (abstract) wherein the devices have a disguised appearance that replicates the look of a conventional drinking container such as a water bottle or drinking cup with a straw (abstract; see also Fig. 2 and Fig. 5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Tomono’s lower housing and mist discharge tube to have the appearance of a drinking containing such as a drinking cup as in Jones in order to obtain the predictable result of disguising the appearance of the personal vapor device with the benefit of concealing the atomizing device within so as to allow a user to use the device without drawing attention to the user (Jones; abstract). Moreover, such a modification involves the mere change in the shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04 (IV).
Regarding claim 3, modified Tomono discloses the lower housing (06; “lower part of the receptacle”) comprises air passage holes (Air; see annotated Fig. 22A; “one or more air vents”) to allow air to flow into one or more intake vents (see annotated Fig. 22A).
Regarding claim 9, modified Tomono discloses the base (see annotated Fig. 22A above) arranged to support the receptacle (see Fig. 22A), and a power supply (03; [0578]; “power source”) configured to switch on in order to generate the mist ([0532]).
However, modified Tomono is silent as to the base comprises the power source. Specifically, Tomono discloses the power supply is spaced from the base.
Jones further discloses a main body (72) includes a bottom wall (Fig. 6; “base”) wherein the base includes a power supply (86) arranged thereon (see Fig. 6) such that the power supply powers both the control circuit (82) and cartomizer (38) ([0032]).
It would have been obvious to said skilled artisan to have modified Tomono’s power supply to be located on the base as in Jones because such a modification involves a rearrangement of parts which has been held to be an obvious matter of design choice in cases where shifting the position of the element would not have modified operation of the device. See MPEP 2144.04(VI)(C).
Regarding claim 14, modified Tomono further discloses a control processing unit (45) to control the liquid atomization means to be the calculated value of atomization for the specific liquid ([0317]-[0318]; “activates the aerosol generator”), wherein drive controlling information can be used to drive the air flow generator using impellers ([0098], [0106]).
Regarding the claim limitation the “control unit arranged to activate the airflow generator without a corresponding activation of the aerosol generator,” this limitation has been considered, and construed as the manner of operating an apparatus that adds no additional structure to the apparatus as claimed. A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. See MPEP 2114. However, because the device of modified Tomono is identical to the claimed invention, it is capable of being operated with similar if not identical claimed characteristics.
Regarding claim 15, modified Tomono discloses the receptacle comprises the mist discharge tube (80; “first upper part”) and the lower housing (06; “second lower part”) that may be disassembled ([0326]-[0327]; “re-attachable”).
Regarding claim 16, modified Tomono does not explicitly teach that the mist generator is sized to be held in one hand.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the size of the external handle in order to obtain the predictable and beneficial result of allowing a user to hold the personal vapor device, as suggested by Jones. Moreover, such a modification involves a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). See MPEP 2144.04 (IV).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Tomono et al. in view of Jones as applied to claim 1 above, and further in view of Bird et al. (US 2009/0013993; of record).
Regarding claim 4, modified Tomono discloses the vaporizer as discussed above with respect to claim 1 including a straw (Jones; 78).
However, modified Tomono is silent as to the first opening comprises a lip that curves downward toward the partially enclosed central space.
Bird teaches an inhalation device (title) comprising a mouthpiece assembly (60; Fig. 2) comprising an open ended tubular stem (74; interpreted as a first opening) including a lip sealing ridge (76), a crest (78), a trough (79), and a bite block (80) (collectively interpreted as a downward curving lip; see Fig. 2 below; para. 98-99).
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the straw of modified Jones to include the lip sealing ridge, crest, trough, and bite block of Bird because (a) such a configuration creates a seal between the mouthpiece and a user’s lips to ensure that no air or very little air escapes between the lips when inhaling (Bird; para. 98) and (b) such modification would have involved a mere change in the shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04 (IV).
Claims 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Tomono et al. in view of Jones as applied to claim 1 above, and further in view of Bowen (US 2017/0259170; of record).
Regarding claim 12-13, modified Tomono discloses the vaporizer as discussed above with respect to claim 1. Modified Tomono further discloses a control processing unit (45) to control the liquid atomization means to be the calculated value of atomization for the specific liquid ([0317]-[0318]; “activates the aerosol generator”).
However, modified Jones is silent as to wherein the control unit activates the aerosol generator in one or more circumstances selected from the group consisting of a predetermined period of time elapsing, the receptacle being picked up, and the receptacle being put down; and a sensor for detecting whether or not the receptacle has been picked up.
Bowen teaches a vaporization device (abstract) wherein the device includes a sensor based standby state such that after lack of movement or placement in a charging cradle the controller may convert to a sleep mode (Paragraph 88), the device may be awoken from the sleep mode by movement indicating the user has picked up the device, or removal from the charging cradle (Paragraph 88), the device including one or more sensors, such as a motion sensor or accelerometer to detect various orientations and/or movements that a user may impart on the device (Paragraph 33).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have added a motion sensor as in Bowen to the vaporizer of modified Jones and modify the control circuit of Jones such that the control unit puts the vaporizer in a sleep mode or awakes the vaporizer from sleep mode based on picking up the vaporizer as in Bowen in order to conserve battery power (Bowen; Paragraph 88).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Tomono et al. in view of Jones as applied to claim 1 above, and further in view of Bretillot et al. (US 2014/0291414; of record).
Regarding claim 17, modified Tomono discloses the vaporizer as discussed above with respect to claim 1, including a straw (Jones; 78).
However, modified Tomono is silent as to the receptacle is sized to comprise a plurality of openings through which the generated aerosolized payload may be inhaled.
Bretillot teaches a device for generating an aerosol (abstract) comprising a glass (254), cover (250) including a primary member (256) and straw (258), the straw extending through the primary member and has an opening through which a separate straw (Paragraph 66), wherein the straw includes a mouthpiece (262) with two side outlets (264; “plurality of openings”) (Paragraph 69), and a gasket material extends in an annulus around the perimeter of the underside of the primary member to provide a cushioning buffer and seal between the glass and cover (Paragraph 73), wherein a user inhales through the straw (Paragraph 69).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Tomono’s straw to have two side outlets as in Bretillot in order to provide a stronger taste experience by reducing the likelihood of particles extending towards the back of the throat due by striking mouth surfaces (Bretillot; Paragraph 69).
Conclusion
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/SONNY V NGUYEN/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755