DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 102
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 following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 22-26, 29-37, 46-48, 50 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Cox et al. (US 6,234,167) .
Cox discloses in reference to claim:
22. (Currently Amended) An aerosol delivery device, comprising: a control body 25/43; a cartridge 323 comprising a reservoir 347 at least partially filled with an aerosol precursor composition G, the cartridge being configured to receive an airflow at 55; a mouthpiece 53; an atomizer 27 defining a surface (interior of heated capillary tube 27) in direct contact with the aerosol precursor composition to produce an aerosol; and a wall A arranged between an end of the reservoir 347 and the atomizer 27, the wall defining an opening B through which the aerosol precursor composition is directed into direct contact with the atomizer 27 .
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23. (Currently Amended) The aerosol delivery device of Claim 22, further comprising a pressure controller configured to control dispensing of the aerosol precursor composition from the reservoir based on a pressure differential between a first pressure within the reservoir and a second pressure proximate the atomizer, the atomizer being configured to produce an aerosol, wherein the first pressure within the reservoir is greater than an ambient pressure.
Cox discloses a pressure controller configured to control dispensing of the aerosol precursor composition from the reservoir based on a pressure differential between a first pressure within the reservoir and a second pressure proximate the atomizer (col. 5, line 42 – col. 6, line 45), the atomizer being configured to heat the aerosol precursor composition received from 10 the reservoir to add an aerosol to the airflow (col. 4, lines 39-45), wherein the first pressure within the reservoir is substantially equal to an ambient pressure (not pressurized, gas surrounding 37 used to apply pressure to flexible reservoir), wherein the pressure controller comprises a flow restrictor (valve 35 or tube 27) configured to produce the pressure differential between the first pressure within the reservoir and the second pressure proximate the atomizer, wherein the control body 25 includes the 10 flow restrictor (fig. 1), wherein the flow restrictor comprises one or more restrictor apertures (inside valve 35 or tube 27), wherein the reservoir comprises an aerosol precursor bag (flexible container 45), and wherein the atomizer further comprises a fluid delivery tube (27) configured to deliver the aerosol precursor composition from the reservoir to 20 the heating element during application of the pressure differential and otherwise resist flow of the aerosol precursor composition to the heating element.
24. (Previously Presented) The aerosol delivery device of Claim 23, wherein the pressure controller comprises a valve 35 configured to selectively release the aerosol precursor composition from the reservoir.
25. (Previously Presented) The aerosol delivery device of Claim 24, further comprising a flow sensor, wherein the valve is configured to actuate in response to a signal from the flow sensor.
A suitable pressure drop detecting device is a puff-actuated sensor (read as flow sensor) in the form of a Model 163PC01D35 silicon sensor, manufactured by MicroSwitch division of Honeywell, Inc., Freeport, Ill., or an SLP004D 0-4" H.sub.2 O Basic Sensor Element, manufactured by SenSym, Inc., Milpitas, Calif. Other known flow-sensing devices, such as those using hot-wire anemometry principles, are also believed to be suited for use with the aerosol generator 21. The use of an air flow detecting device 51, as compared to a pressure drop detecting device, is presently preferred for inhaler-type applications because it is anticipated that an air flow detecting device will be easier for users to actuate as compared to a pressure drop detecting device.
26. (Previously Presented) The aerosol delivery device of Claim 24, wherein the cartridge 323 includes the valve 35 and the atomizer 27.
29. (Currently Amended) The aerosol delivery device of Claim 22, further comprising a pressure controller configured to control dispensing of the aerosol precursor composition from the reservoir based on a pressure differential between a first pressure within the reservoir and a second pressure proximate the atomizer, the atomizer being configured to produce an aerosol, wherein the first pressure within the reservoir is substantially equal to an ambient pressure.
Cox discloses a pressure controller configured to control dispensing of the aerosol precursor composition from the reservoir based on a pressure differential between a first pressure within the reservoir and a second pressure proximate the atomizer (col. 5, line 42 – col. 6, line 45), the atomizer being configured to heat the aerosol precursor composition received from 10 the reservoir to add an aerosol to the airflow (col. 4, lines 39-45), wherein the first pressure within the reservoir is substantially equal to an ambient pressure (not pressurized, gas surrounding 37 used to apply pressure to flexible reservoir), wherein the pressure controller comprises a flow restrictor (valve 35 or tube 27) configured to produce the pressure differential between the first pressure within the reservoir and the second pressure proximate the atomizer, wherein the control body 25 includes the 10 flow restrictor (fig. 1), wherein the flow restrictor comprises one or more restrictor apertures (inside valve 35 or tube 27), wherein the reservoir comprises an aerosol precursor bag (flexible container 45), and wherein the atomizer further comprises a fluid delivery tube (27) configured to deliver the aerosol precursor composition from the reservoir to 20 the heating element during application of the pressure differential and otherwise resist flow of the aerosol precursor composition to the heating element.
30. (Previously Presented) The aerosol delivery device of Claim 29, wherein the
pressure controller comprises a flow restrictor 35 configured to produce the pressure differential between the first pressure within the reservoir and the second pressure proximate the atomizer.
31. (Previously Presented) The aerosol delivery device of Claim 30, wherein the control body includes the flow restrictor.
32. (Previously Presented) The aerosol delivery device of Claim 30, wherein the flow restrictor comprises one or more restrictor apertures (see valve 35).
33. (Previously Presented) The aerosol delivery device of Claim 29, wherein the reservoir comprises an aerosol precursor bag (flexible container 45),
34. (Previously Presented) The aerosol delivery device of Claim 29, wherein the atomizer further comprises a fluid delivery tube 345 configured to deliver the aerosol precursor composition from the reservoir to the heating element during application of the pressure differential and otherwise resist flow of the aerosol precursor composition to the heating element.
35. (Previously Presented) The aerosol delivery device of Claim 22, wherein the cartridge comprises the mouthpiece 53.
36. (Previously Presented) The aerosol delivery device of Claim 22, wherein the atomizer comprises a heating element 33.
37. (Previously Presented) The aerosol delivery device of Claim 22, wherein the cartridge 323 is configured to receive the airflow from the control body. Note the airflow through apertures 55 will come from the control body at least partially as the airflow proceeds around the exterior of the aerosol device as a whole.
46. (New) The aerosol delivery device of claim 22, wherein a chamber 345 is formed between the wall and the atomizer.
47. (New) The aerosol delivery device of claim 22, wherein the atomizer is flat. Note that atomizer tube can be considered flat, meaning without curves along the axial direction.
48. (New) The aerosol delivery device of claim 22, wherein the opening is cylindrical. Note that the opening between 347 and 323 through which the tube 345 traverses is implied to be cylindrical since the tube 345 passing therethrough is cylindrical.
50. (New) The aerosol delivery device of claim 22, further comprising a pump arranged to deliver the aerosol precursor composition to the surface of the atomizer.
According to the preferred embodiment, the source 37 of material includes a flexible container 45, and the pressurization arrangement 39 includes a chamber 47 in which the flexible container is disposed. A pressurized gas G is preferably sealed in the chamber 47 and surrounds the flexible container 45. The pressurization arrangement 39 is preferably a so-called sepra container of the type used for dispensing, for example, gel shaving creams, caulking compounds, and depilatories, although other pressurization arrangements for delivering the material, such as propellants and manual or automatic pumps, may be used if desired or necessary. The sepra container pressurization system is particularly preferred, however, particularly due to its capacity for resistance to surrounding temperature variations, as well as to variations in pressure of the gas G because the gas is not depleted. When it is desired to dispense material from the source 37 of material, and the valve 35 is opened, the pressure of the gas G, which is preferably about two atmospheres (about 30 psi) greater than ambient pressure, compresses the flexible container 45, causing material to enter the tube 27 through the second end 31 of the tube in communication with the source of material. A preferred gas G is nitrogen because of its ready availability and comparatively low cost, although various other gases are also suitable and may be preferred for particular applications.
Claim Rejections - 35 USC § 103
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 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 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.
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.
The Supreme Court in KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 U.S.C. 103 should be made explicit.
EXEMPLARY RATIONALES
Exemplary rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
Claim(s) 51 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cox et al (US 6,234,167) in view of Wensley et al. (US 10034988).
Regarding claims 22-26 and 29-37:
Cox et al teaches (as described above) an aerosol delivery device , comprising: a control body (25/43); a cartridge (23-–including mouthpiece section 49a) comprising a reservoir (37) at least partially filled with an aerosol precursor composition, the cartridge 23 being configured to receive an airflow from the control body (53, 55, user inhales on mouthpiece 53 causing air to be withdrawn and flowing); 5 an atomizer (within cartridge 23 as shown in 27x) and defining a surface (interior surface of tube 27) in direct contact with the aerosol precursor composition to produce an aerosol, and a wall A arranged between an end of the reservoir 37 and the atomizer 27x, the wall A defining an opening B through which the aerosol precursor composition is directed into direct contact with the atomizer 27x
Cox further teaches the aerosol device comprising a chamber (surrounding tube 27) and a heating element (33); and a pressure controller configured to control dispensing of the aerosol precursor composition from the reservoir based on a pressure differential between a first pressure within the reservoir and a second pressure proximate the atomizer (col. 5, line 42 – col. 6, line 45), the atomizer being configured to heat the aerosol precursor composition received from 10 the reservoir to add an aerosol to the airflow (col. 4, lines 39-45), wherein the first pressure within the reservoir is substantially equal to an ambient pressure (not pressurized, gas surrounding 37 used to apply pressure to flexible reservoir), wherein the pressure controller comprises a flow restrictor (valve 35 or tube 27) configured to produce the pressure differential between the first pressure within the reservoir and the second pressure proximate the atomizer, wherein the control body 25 includes the 10 flow restrictor (fig. 1), wherein the flow restrictor comprises one or more restrictor apertures (inside valve 35 or tube 27), wherein the reservoir comprises an aerosol precursor bag (flexible container 45), and wherein the atomizer further comprises a fluid delivery tube (27) configured to deliver the aerosol precursor composition from the reservoir to 20 the heating element during application of the pressure differential and otherwise resist flow of the aerosol precursor composition to the heating element. Note that Cox discloses the atomizer (at least a portion thereof) being positioned longitudinally between the opening 55 and the mouthpiece. Further note that by definition the opening establishes the upstream extent of the flow path as such the opening receives the air flow upstream of [at least a portion of] the atomizer. Cox et al further teaches that the heating element 33 is positioned within the chamber 27x (see annotated figure below). Further note the first and second components 23 and 25 can be attachable to one another in end to end or side by side relationships.
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Cox does not explicitly disclose wherein a second opening is configured to receive airflow, wherein at least a majority of the atomizer is positioned between and spaced apart from the second opening and the mouthpiece along a longitudinal axis of the aerosol delivery device such that the second opening receives the airflow upstream of the atomizer.
Wensley discloses a similar electronic smoking device including a similarly shaped electric heater cooperating with a capillary fluid transport tube connected to reservoir. See figure below.
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The coil can be an open coil that can allow for air to flow between the coils and carry away the vaporized material. In FIG. 22, the brass contacts (2204) are located (disposed) on either side of an airflow channel and the rod, including the coil, span the channel. In some cases, the coil can be oriented parallel to the flow of a carrier gas (e.g., air). In some cases, the coil can be oriented perpendicular to the flow of a carrier gas (e.g., air). In FIG. 22, a tube, e.g., capillary tube (2206) attached to a reservoir (2208) comprising an agent (e.g., nicotine) mixture is located at one end of the coil and an agent (e.g., nicotine) mixture is dispensed from the end of the tube, e.g., capillary tube onto the coil. The agent (e.g., nicotine) mixture, once dispensed, can wick along the coil to cover the entire or part of the coil. The coil can be heated which can vaporize the agent (e.g., nicotine) mixture. Further note that Wensley additionally contemplates embodiments wherein the capillary tube is heated directly to transfer heat to the fluid transported therethrough as taught by Cox. As such direct heating of the capillary tube and providing the heating coil spaced apart from the tube to heat the fluid directly by the coil can be seen to be known methods or techniques of supplying heat to a fluid for vaporization in an air flow that would lead to predictable results.
Although Cox suggests it to be preferable to limit the cooling of the capillary tube with the inlet airflow by moving the inlets to nearer the mouthend, this is notably because the atomization takes place (in the atomizer which is comprised of a chamber (capillary tube) and heating element 33) within the capillary tube 27 as it is heated by the heater 33. As discussed above, Wensley also teaches atomization within a capillary tube and additioinally teaches as a know alternative an optional mode of atomization in a device using similar construction wherein the atomization does not take place in the capillary tube (as taught by Cox) but rather directly at the heating element positioned spaced apart from and/or partially overlapping the capillary tube. By modifying the Cox device with the teaching of Wensley, the need to limit the overlap of the airflow with the capillary tube as discussed in Cox is eliminated as the capillary tube wall is not used to atomize the substance. Further note the structure as shown in Wensley Fig. 22 shows a capillary tube 2206 directly exposed to the air flow without inhibiting the function of the device, evidence that such a modification to the Cox device would likewise not inhibit proper atomization. The device of Cox as modified by Wensley (depicted in the modified/annotated figure above) thus presents an atomizing device with improvements and/or alternatives over the Cox device.
At least under KSR rationales A, C or D above, one of skill in the art would find it obvious to
modify the Cox device to include the heating element arrangement taught by Wensley including a
heating element extending from and spaced apart from and/or partially overlapping an open ended side of the tubing segment such that at least a majority of the atomizer (the heating coil as taught by Wensley) is positioned between and spaced apart from the opening and the mouthpiece along a longitudinal axis of the aerosol delivery device of Cox such that the opening receives the airflow upstream of the atomizer. See modified figure below.
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Claim(s) 27-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cox et al (US 6,234,167).
Regarding claims 27-28
Cox et al. teaches the claimed invention as described above. Cox et al further teaches that the pressure controller comprises a valve (35) configured to selectively release the aerosol precursor composition from the reservoir, a flow sensor (51), wherein the valve is configured to actuate in response to a signal from the flow sensor (col. 5, lines 42-61), the cartridge is adjoined to the valve and the atomizer (one unitary structure), the control body (23) includes the valve and the atomizer (fig. 1), and the control body comprises a coupler which is coupled to a base of the cartridge (interior components secured in place with respect to body 23), the valve being in fluid communication with the reservoir (fig. 1) when the coupler of the control body is coupled to the base of the cartridge.
Cox et al, does not explicitly teach that the pressure within the reservoir is greater than an ambient pressure. Cox et al, however, does teach that the aerosol precursor composition is released from the reservoir (37) by pressurized force from gas surrounding the flexible container (45, col. 4, line 62 - col. 5, line 18). It is noted that for precursor composition to be released from the reservoir, the pressure within the reservoir must be greater than the pressure surrounding the reservoir, as if pressure within the reservoir were lower than the ambient pressure the ambient environment would be drawn into the reservoir when opened.
Regarding claims 38-41, 44-45:
Cox et al, teaches the claimed invention as described above. Cox et al further teaches controlling dispensing of the aerosol precursor composition from the reservoir with a valve (col. 4, lines 25-51), detecting an airflow with a flow sensor (51), wherein controlling dispensing comprises actuating the valve in response to a signal from the flow sensor (col. 5, lines 42-61), and wherein selectively releasing the aerosol precursor composition from the reservoir with the valve comprises directing the aerosol precursor composition from the reservoir in the cartridge through the valve in the control body (col. 4, lines 25-51).
Cox et al. teaches that the pressure within the reservoir is greater than an ambient pressure (see above). Cox et al, however, does teach that the aerosol precursor composition is released from the reservoir (37) by pressurized force from gas surrounding the flexible container (45, col. 4, line 62 - col. 5, line 18). It is noted that for precursor composition to be released from the reservoir, the pressure within the reservoir must be greater than the pressure surrounding the reservoir, as if pressure within the reservoir were lower than the ambient pressure the ambient environment would be drawn into the reservoir when opened.
Regarding claims 27-28 and what elements are positioned within which portion of the aerosol device, it generally understood that the components can be rearranged by the skilled artisan without the exercise of inventiveness as the preferred design may dictate.
Claim(s) 49 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cox et al (US 6,234,167) in view of Thorens et al. (US 2011/0094523A1).
Cox et al teaches the claimed invention (as described above) except in reference to claim:
49. (New) The aerosol delivery device of claim 22, wherein the atomizer is ceramic.
Thorens teaches a similar capillary tube atomizer wherein the atomizer (capillary tube/wick) material is disclosed as being ceramic. One of skill in the art would find it obvious to make the tube 27 of Cox from a suitable material, Thorens teaches ceramic to be a suitable material, as such it would have been obvious to the artisan to make the tube 27 of Cox from ceramic.
Response to Arguments
Applicant's arguments filed 11/17/2025 have been fully considered but they are not persuasive, and additionally arguments relating to new limitations are moot with regard to the previous claim limitations and applied art thereto.
Applicant argues that Cox teaches the material to be volatized is transmitted through an interior of the tube 27 such that the material to be volatized is never in direct contact with the heater 33, which is coiled around the exterior of the tube 27. It is noted that the claims call for an atomizer is direct contact with the aerosol precursor, not as suggested by Applicant’s argument, the heater.
Applicant further argues that Cox fails to disclose a wall arranged between an end of the reservoir and the atomizer, the wall defining an opening through which the aerosol precursor composition is directed into direct contact with the atomizer. The new limitation is addressed above.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOR S CAMPBELL whose telephone number is (571)272-4776. The examiner can normally be reached on M,W-F 6:30-10:30, 12-4.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ibrahime Abraham can be reached on 5712705569. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THOR S CAMPBELL/ Primary Examiner, Art Unit 3761
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