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 .
Response to Amendment
Amendment filed 7/9/2025 has been entered and fully considered. Claims 1-6 and 8-20 are pending. Claim 7 is cancelled. Claim 1 is amended. No new matter is added.
Response to Arguments
Applicant's arguments filed 7/9/2025 have been fully considered but they are not persuasive.
Applicant argues that neither the Austin nor Tucker references cited by Examiner disclose the newly added limitations of the base unit incorporating the heat activation button, or that the base unit bears and supports the beverage dispenser’s weight.
When the battery case/base unit is attached to the Austin invention, it is attached not the beverage container itself, but rather to the handle, 4, which is connected to the beverage container. Thus, when the battery case/base unit is connected to the handle, the battery case/base unit does not bear or support the beverage container’s weight, and instead hangs from the handle, and therefore the handle connected to the container bears the weight. Furthermore, if a user lifts the beverage container by the battery case/base unit, as suggested by the Examiner, the battery case/base does not bear or support the weight, the user’s hand supports the weight.
Examiner respectfully disagrees. While the handle bridge, 4, hold the battery case/base unit, and ultimately connects the battery case/base unit to the beverage container, 1, when the user holds the battery case/base unit in the air, the weight of the beverage container is transferred to the base unit via the handle. If the weight of the container wasn’t transferred to the battery case/base unit, then the container would not lift from a surface when a user lifts the battery case/base unit.
Applicant does not agree that it would have been obvious to one skilled in the art to use the base unit of Tucker in place of that of Austin. Tucker does not disclose any base unit that is detachable from the other elements of an electronic cigarette. Tucker does not disclose an embodiment that incorporates a removable mouth end insert, but rather “a mouth end insert 8 having a stationary piece and a rotatable piece” (para 0085]). The mouth end insert of Tucker is disclosed to comprise both the rotatable piece and stationary piece. Thus, when the rotatable piece is separated from the stationary piece, the result is not that the mouth end insert is detached from the rest of the electronic cigarette.
Examiner respectfully disagrees. Tucker explicitly discloses that the two parts of the electronic cigarette, 72 and 70 (See figure 1) are attachably connected through a threaded connection (Paragraph [0037]). This is analogous to the manner in which the parts of the electronic cigarette are attached in Austin (Paragraph [0012]; Figure 2). Thus, there does not appear to be a teaching away from using a device similar to that disclosed by Austin in a manner disclosed in Tucker.
Applicant argues that Tucker further discloses that the heat activator of the electronic cigarette as being positioned in the electronic cigarette, and not in a separate base unit.
Examiner notes that the electronic cigarette is the claimed base unit. Thus, any heat activation button located on the electronic cigarette is a button located on the base unit.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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Claim(s) 1-6, 8, 12, 13, 15 and 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over AUSTIN (US 2017/0334606) in view of TUCKER et al. (US 2013/0192623) and MURISON et al. (US 2016/0366946).
With respect to claim 1, AUSTIN discloses a beverage container and electronic vapor device (Abstract; Title) comprising a base unit (e.g., vaping device) that is removably connected to the beverage dispenser (Paragraphs [0009]-[0013]).
AUSTIN does not explicitly disclose the construction of the vaping device. TUCKER et al. discloses a vaporizer (Abstract) comprising a reservoir, 22 (Paragraph [0034]); a heating chamber, 62, that contains a heater, 14, in the form of a coil and a wick, 28 (Paragraph [0035]; Figures 1 and 4). The base unit further comprises a vapor outlet, 24’, to allow the vapor to flow out of the base unit (Paragraph [0036]) and a conduit, 63, section fluidly connected to the vapor outlet (Figures 1 and 4) for allowing the vapor to flow from the heating chamber to the vapor outlet and ultimately to the user (Paragraph [0036]). TUCKER et al. further discloses that the vapor outlet is preferably integrally attached to the base unit (Paragraph [0067]). This preferable attachment indicates that the vapor outlet is not necessarily integrally attached and instead is removably attached to the base unit.
While the handle bridge, 4, hold the battery case/base unit, and ultimately connects the battery case/base unit to the beverage container, 1, when the user holds the battery case/base unit in the air, the weight of the beverage container is transferred to the base unit via the handle. If the weight of the container wasn’t transferred to the battery case/base unit, then the container would not lift from a surface when a user lifts the battery case/base unit.
The courts have generally held that the use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain. See, In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983).
Moreover, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. See, Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also, Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005). MPEP 2123, I and II.
Thus, the disclosure by TUCKER of a preferred embodiment of having the mouth end insert being integral with the tube of the cartridge suggest a non-preferred embodiment where the mouth end insert, and thus the vapor outlet, 24’, is not integral to the mouth end insert. It would appear that the disclosure of TUCKER includes a removable mouth end insert. Moreover, TUCKER shows that the vapor outlet, 24’, is held to the mouth end insert by a screw (Figures 11 and 12). Thus, this too, appears to shows that the vapor outlet is removable from the vapor dispenser. By extension, the vapor outlet is also removable from all components of the vapor dispenser, including the conduit section, as well as the beverage component as well.
The reservoir holds extracts from tobacco material (i.e., herbal extract) which are then released as vapor in the heating chamber (Paragraphs [0060]-[0061]). Thus, the reservoir represents the claimed herb chamber in which the herbal extracts are held and then vaporized in the heating chamber.
The device of AUSTIN (See figure 2) is capable of having the user holding the base unit and then positioning the beverage dispenser, 1, onto the threads, 12, of the base unit. In such a scenario, as the user holds the base unit to hold the beverage dispenser, the beverage dispenser rests on the based unit as the base unit is a base for the beverage dispenser.
[AltContent: textbox (Beverage dispenser then rests on base unit, through bridge, 4, while the user holds only the base unit. )][AltContent: arrow][AltContent: textbox (User holds base unit while fitting beverage dispenser bridge, 4, thereon)][AltContent: arrow]
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It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to use the base unit of TUCKER et al. in place of that of AUSTIN so that a greater distribution of aerosol can be provided to the smoker’s mouth thereby providing a fuller mouth feel (TUCKER et al.; Paragraph [0031]). Moreover, it would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, provide the vapor outlet as removable so that the user can exchange the vapor outlet for different types of outlets (TUCKER et al.; Paragraph [0051]).
Additionally, if the coupling adaptor is considered as part of the base unit, then the gripping lip implicitly has an upper surface that faces a bottom surface of the beverage dispenser at the bridge, 4 (See annotated figure 3, below; Also see paragraphs [0012] and [0013]).
[AltContent: textbox (Bottom of bridge (e.g., bottom of a portion of the beverage dispenser) facing upper surface of lip)][AltContent: arrow][AltContent: arrow][AltContent: textbox (Upper surface of gripping lip (e.g., base unit) facing bottom surface of bridge, 4)]
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As seen in annotated figure 3, above, the gripping lip is below the handle bridge, and therefore a top portion of at least a portion of the base unit is below a bottom surface of a portion of the beverage dispenser.
AUSTIN does not explicitly disclose that the top surface directly contacts the bottom surface. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to tighten the coupling adaptor fully to seat the top surface of the gripping lip directly against the bottom surface of the bridge so that there is not loose when assembled and so that there is no relative rotation between the base unit and dispenser when the user is holding the base unit as a handle and drinking from the dispenser.
AUSTIN does not explicitly disclose the claimed button. MURISON et al. discloses a power mode button that increases or decreases the amount of vapor produced by controlling the amount of power to the heater, by increasing or decreasing the temperature thereof (Paragraphs [0246]-[0266]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide a button on the base unit of modified AUSTIN, as taught by MURISON et al. so that the power to the heater, and therefore the temperature of the heater, can be increased or decreased to alter the amount of vapor based on the user’s desires.
With respect to claim 2, TUCKER et al. discloses that the heating chamber incorporate heating coils (Paragraph [0091]) powered by a battery (Paragraph [0042], [0043], [0050]).
With respect to claim 3, the courts have generally held that the inclusion of the material worked upon by a structure being claimed does not impart patentability to the claim. See, In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935). MPEP 2115.
In the instant case, the dry ice and the herb of the claims are materials worked upon given that these materials are consumables in the apparatus being claimed.
With respect to claim 4, TUCKER et al. discloses that the reservoir is held in a replaceable cartridge (Paragraph [0033]) (i.e., removable tray).
With respect to claim 5, TUCKER et al. discloses that the base unit comprises a heat indicator light, 48, operable to glow when the heater is activated (Paragraph [0053]).
With respect to claim 6, TUCKER et al. discloses that the base unit comprises a heat indicator light, 48, operable to glow (e.g., the setting of the heater is “on”) when the heater is activated (Paragraph [0053]).
With respect to claim 8, AUSTIN does not explicitly disclose the claimed button. MURISON et al. discloses a power mode button that increases or decreases the amount of vapor produced by controlling the amount of power to the heater, by increasing or decreasing the temperature thereof (Paragraphs [0246]-[0266]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide a button on the base unit of AUSTIN, as taught by MURISON et al. so that the power to the heater, and therefore the temperature of the heater, can be increased or decreased to alter the amount of vapor based on the user’s desires.
With respect to claim 12, TUCKER et al. discloses that the heating chamber is surrounded by the reservoir (Figures 6 and 7). Thus, when the device is held horizontally, as shown in figures 6 and 7, the reservoir is both above and below the heating chamber.
With respect to claim 13, AUSTIN discloses an extension, 4, incorporated in the beverage dispenser to attach to the base unit (Paragraphs [0010]-[0012]).
With respect to claim 15, TUCKER et al. discloses that the outer wall of the base unit is transparent so that the user is able to see through the outer wall (Paragraph [0038]). AUSTIN shows that the base unit is viewable above and below the extension 4 (Figures 1 and 2). Thus, the areas above and below the extension represent the viewable portions and since the walls the base unit of TUCKER et al. are transparent, the user can view into the base unit when attached to the dispenser in these areas.
With respect to claim 17, TUCKER et al. discloses that the vapor dispenser is operable to generate vapor via convection (Paragraph [0044]) heating. The dispenser comprises a conduit section (in this case 62 represents the conduit) (Paragraph [0033]) that houses the heater, 14, therein (Paragraphs [0034], [0035]); Figures 6 and 7). The base unit further incorporates an air inlet, 44, whereby air flows into the base unit (Paragraph [0039]). The conduit section is attached to the base unit such that the heating chamber is positioned within the base unit such that it is surrounded by the reservoir (and thus the reservoir is above and below the heating chamber; Figure 7). The heating chamber of the base unit coincides with that of the conduit, given that the same heater is positioned within this area. The air that flows into the inlet generates convection heating (Paragraph [0044]).
With respect to claim 18, TUCKER et al. discloses that the reservoir holds extracts from tobacco material (i.e., herbal extract) which are then released as vapor in the heating chamber (Paragraphs [0060]-[0061]). Thus, the reservoir represents the claimed herb chamber in which the herbal extracts are held and then vaporized in the heating chamber.
TUCKER et al. discloses placing the liquid having herb extracts into the reservoir (Paragraph [0098]) of the base unit of the beverage and vapor dispenser, and then AUSTIN discloses attaching the base unit to the beverage dispenser (Paragraph [0011] and [0012]). AUSTIN further discloses inhaling the vapor from the base unit and drinking the liquid from the beverage dispenser (Paragraph [0011]). TUCKER et al. discloses activating the heating chamber to produce vapor to inhale (Paragraph [0056])
AUSTIN does not explicitly disclose the step of filling the dispenser. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to pour liquid into the dispenser of AUSTIN so that the drink and smoke can be had together.
With respect to claim 19, TUCKER et al. discloses inhaling the vapor from the conduit section by mouth, by sucking on the vapor outlet, and thus indirectly sucking on the conduit (Paragraphs [0039], [0044], [0071], [0080], [0085]).
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Claim(s) 9-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over AUSTIN (US 2017/0334606) in view of TUCKER et al. (US 2013/0192623) and MURISON et al. (US 2016/0366946) as applied to claims 1-6, 8, 12, 13, 15 and 17-19 above, and further in view of SCATTERDAY (US 9,010,335).
With respect to claim 9, modified AUSTIN discloses that the base unit is separable from the beverage dispenser (AUSTIN; Paragraph [0012]) (and thus the conduit is separable from the beverage dispenser) but does not explicitly disclose that the base unit and conduit are separable. SCATTERDAY discloses that the vaporizer may be completely disassembled in order allow the user to replace, replenish or repair the device (Column 3, lines 5-20). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention to allow the conduit section, as well as all the parts making up the vaporizer, to be completely disassembled, as taught by SCATTERDAY so that the user can replace or repair parts of the device if needed.
With respect to claims 10 and 11, modified AUSTIN discloses a tip, 10, having a hole, 63, connected to the conduit, 62, at an end thereof, so that vapor can flow from the tip when connected, and the tip is not directly attached to the vapor outlet (AUSTIN; Figures 1 and 4; Paragraph [0058]).
Modified AUSTIN does not explicitly disclose that the tip is removably attachable to the end of the conduit. SCATTERDAY discloses that the vaporizer may be completely disassembled in order allow the user to replace, replenish or repair the device (Column 3, lines 5-20). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention to allow the conduit be removably attached to the tip, as taught by SCATTERDAY so that the user can replace or repair parts of the device if needed.
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Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over AUSTIN (US 2017/0334606) in view of TUCKER et al. (US 2013/0192623) and MURISON et al. (US 2016/0366946) as applied to claims 1-6, 8, 12, 13, 15 and 17-19 above, and further in view of LIU (US 2014/0060527).
With respect to claim 16, modified AUSTIN does not explicitly disclose that the chamber includes multiple chambers. LIU discloses that the atomizer, 20, includes a first and second reservoir, 303 and 304, so that the vaporizer can mix multiple flavors (Paragraphs [0044]; Abstract). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide a plurality of chambers in the chamber of modified AUSTIN, as taught by LIU, so that a mixture of flavors can be provided to the user.
Allowable Subject Matter
Claims 14 and 20 are allowed.
The following is a statement of reasons for the indication of allowable subject matter: With respect to claim 14, the cited art does not include the conduit parallel to the wall of the beverage dispenser, per se, and that the wall of the beverage dispenser comprises a conduit indentation for the conduit, per se. As seen in AUSTIN, the base unit is held away from the wall of the beverage dispenser.
With respect to claim 20, while mere duplication of parts isn’t necessarily patentable. Claim 20 includes multiple beverage dispensers paired with a vapor tray having an inlet and multiple outlets, along with a single base unit. Thus, the system includes a configuration not taught by AUSTIN or the prior art when considering a beverage dispenser along with a vapor dispenser.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEX B EFTA whose telephone number is (313)446-6548. The examiner can normally be reached 8AM-5PM EST M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Tucker can be reached at 571-272-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALEX B EFTA/Primary Examiner, Art Unit 1745
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