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 .
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 (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 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.
Claims 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Wang (WO2019061906A1) in view of Lim (2020/0221782).
With regard to claim 1, Wang teaches, as shown in figures 1-3 and taught on page 3 lines 5-6
and page 4 line 18 - page 5 line 16 of the translation: “A smoking substitute device 1 adapted for receiving a smoking substitute consumable (tobacco oil described on page 5 lines 3-16 of
the translation), the smoking substitute device 1 comprising: a heating element 12 adapted for heating the smoking substitute consumable; and a control element 11 comprising at least one of an actuator or an activation switch 13 configured to be pressed by a user of the smoking substitute device 1 to set a desired mode of operation of at least two user settable modes of operation; wherein the control element is adapted to set different modes of operation of the at least two user settable modes of operation (multiple modes described on page 4 lines 29-38)… and wherein the smoking substitute device is a heat-not-burn smoking substitute device (page 4 lines 18-19 teach the device being heat-not-burn (non-combustion))”.
Wang does not teach the user selecting the mode of operation “depending on a duration of the press by the user; wherein the smoking substitute device further comprises a display element for indicating, to the user, a set mode of operation, of the at least two user settable modes of operation, that has been set depending on the duration of the press by the user”.
In the same field of endeavor before the effective filing date of the claimed invention, Lim teaches, as shown in figures 4-9 and taught in paragraphs 81-84, the user selecting the mode of operation “depending on a duration of the press by the user (taught in paragraph 84); wherein the smoking substitute device 5 further comprises a display element 29 for indicating, to the user, a set mode of operation, of the at least two user settable modes of operation, that has been set depending on the duration of the press by the user (paragraphs 81-84 also teach the displaying of the operational state by LED)”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Lim with the invention of Wang in order to prevent unintentional operation of the device due to incorrect pressing of a button (Lim, paragraph 8).
With regard to claim 2, Wang as modified by Lim teaches: “The smoking substitute device of claim 1”, as shown above.
Lim also teaches, as shown in figures 4-9 and taught in paragraphs 47, 52, 75, and 93: “further comprising: a main body 20; and a cavity (where cigarette 7 is received inside 52 in figure 9 and taught in paragraph 83); wherein the cavity is arranged in the main body 20; wherein the heating element 52 is arranged in the cavity; wherein the cavity is adapted for receiving the smoking substitute consumable 7; and wherein the heating element (specifically the susceptor taught in paragraph 47) is adapted for penetrating an outer surface of the smoking substitute consumable 7 to get into contact with tobacco material (paragraphs 52 and 75 teach the consumable containing tobacco and paragraphs 47 and 93 teach the susceptor inside the consumable for heating the consumable) located inside the smoking substitute consumable 7 upon insertion of the smoking substitute consumable 7 into the smoking substitute device 5 for heating of the tobacco material”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention to combine these features of Lim with the invention of Wang as modified by Lim in order to use an induction heating method to heat the smoking substitute consumable (Lim, paragraph 47).
With regard to claim 5, Wang as modified by Lim teaches: “The smoking substitute device according to claim 1”, as shown above.
Wang also teaches, as taught on page 2 last line - page 3 line 2: “wherein a desired mode of operation is settable for the duration of consuming a smoking substitute consumable”.
With regard to claim 6, Wang as modified by Lim teaches: “The smoking substitute device according to claim 1… which the control element is adapted to set depending on the duration of the press by the user,”, as shown above.
Wang also teaches, as shown in figures 1-3 and taught on page 2 last line - page 3 line 2 and page 4 line 18 - page 5 line 16 of the translation: “wherein the different modes of operation of the at least two user settable modes of operation… are for heating the heating element 12 to different temperatures during consumption of the smoking substitute consumable”.
With regard to claim 11, Wang as modified by Lim teaches: “a smoking substitute device according to claim 1”, as shown above.
Wang also teaches, as shown in figures 1-3 and taught on page 2 last line - page 3 line 2 and page 4 line 18 - page 5 line 16 of the translation: “A smoking substitute system, comprising… and a smoking substitute consumable (tobacco oil described on page 5 lines 3-16 of the translation)”.
With regard to claim 12, Wang as modified by Lim teaches: “A method of using the smoking substitute system according to claim 11”, as shown above.
Wang also teaches, as shown in figures 1-3 and taught on page 2 last line - page 3 line 2 and page 4 line 18 - page 5 line 16 of the translation: “the method comprising: inserting the smoking substitute consumable into the smoking substitute device 1; and heating the smoking substitute consumable using the heating element 12”.
With regard to claim 68, Wang as modified by Lim teaches: “The smoking substitute device according to claim 1”, as shown above.
Lim also teaches, as shown in figures 4-9 and taught in paragraphs 101-108: “wherein the control element is further adapted for additionally switching on and off the smoking substitute device 5”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine these features of Lim with the invention of Wang as modified by Lim in order to provide more functionality to the control element.
With regard to claim 70, Wang as modified by Lim teaches: “The smoking substitute device according to claim 1”, as shown above.
Wang also teaches, as shown in figures 1-3 and taught on page 7 lines 30-38: “further comprising a microprocessor coupled to the control element 11”.
With regard to claim 71, Wang as modified by Lim teaches: “The smoking substitute device according to claim 70”, as shown above.
Wang also teaches, as shown in figures 1-3 and taught on page 5 lines 20-27: “wherein a mode of operation relates to a heating temperature of the heating element 12 during consumption of the smoking substitute consumable”.
With regard to claim 76, Wang as modified by Lim teaches: “The smoking substitute device according to claim 70”, as shown above.
Lim also teaches, as shown in figures 4-9 and taught in paragraph 81-82 and 97: “further comprising a memory storing control instructions for the microprocessor, and wherein the display element is configured to operate in accordance with instructions from the microprocessor and memory”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention to combine the features of Lim with the invention of Wang as modified by Lim in order to communicate the mode of operation to the user (Lim, paragraph 82).
With regard to claim 77, Wang as modified by Lim teaches: “The smoking substitute device according to claim 70”, as shown above.
Lim also teaches, as shown in figure 7 and taught in paragraph 81: “wherein the display element 29 comprises one or more LEDs”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Lim with the invention of Wang as modified by Lim in order to communicate the operational state to the user (Lim, paragraph 81).
With regard to claim 78, Wang as modified by Lim teaches: “The smoking substitute device according to claim 77”, as shown above.
Lim also teaches, as shown in figure 7 and taught in paragraph 81: “wherein the one or more LEDs are arranged in a vicinity of the control element on a side surface of the smoking substitute device 5”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Lim with the invention of Wang as modified by Lim in order to keep the electronics centralized.
With regard to claim 79, Wang as modified by Lim teaches: “The smoking substitute device according to claim 78” and “modes of operation, which are settable depending on the duration of the press by the user”, as shown above.
Lim also teaches, as shown in figure 7 and taught in paragraph 81: “wherein the one or more LEDs are configured to depict the different modes of operation by providing different information in accordance with each mode”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Lim with the invention of Wang as modified by Lim in order to communicate the operational state to the user (Lim, paragraph 81).
With regard to claim 80, Wang as modified by Lim teaches: “The smoking substitute device according to claim 77” and “modes of operation, which are settable depending on the duration of the press by the user”, as shown above.
Lim also teaches, as shown in figure 7 and taught in paragraph 81: “wherein the one or more LEDs are configured to depict different modes of operation by providing different information in accordance with each mode”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Lim with the invention of Wang as modified by Lim in order to communicate the operational state to the user (Lim, paragraph 81).
With regard to claim 81, Wang as modified by Lim teaches: “The smoking substitute device according to claim 79” and “each mode of the different modes of operation which are settable depending on the duration of the press by the user”, as shown above.
Lim also teaches, as shown in figure 7 and taught in paragraphs 81-83: “wherein the one or more LEDs are configured to depict different modes of operation by providing different information in accordance with each mode”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Lim with the invention of Wang as modified by Lim in order to communicate the operational state to the user (Lim, paragraph 81).
With regard to claim 82, Wang as modified by Lim teaches: “The smoking substitute device according to claim 80” and “each mode of the different modes of operation which are settable depending on the duration of the press by the user”, as shown above.
Lim also teaches, as shown in figure 7 and taught in paragraphs 81-83: “wherein the one or more LEDs are configured to depict different modes of operation by providing different information in accordance with each mode”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Lim with the invention of Wang as modified by Lim in order to communicate the operational state to the user (Lim, paragraph 81).
With regard to claim 84, Wang teaches, as shown in figures 1-3 and taught on page 3 lines 5-6 and page 4 line 18 - page 5 line 16 of the translation: “A heat-not-burn smoking device 1, comprising… a heating element 12 configured for heating a smoking substitute consumable (tobacco oil described on page 5 lines 3-16 of the translation)… a single switch 13 configured to be pressed to select a mode of operation of at least two user selectable modes of operation (multiple modes described on page 4 lines 29-38)”.
Wang does not teach a main body having a cavity receiving the smoking substitute consumable, “the heating element configured for penetrating an outer surface of the smoking substitute consumable and contacting tobacco material inside the smoking substitute consumable”, the mode selected “depending on a duration of the press; and a display on the main body configured to show a selected mode of operation, the display comprising one or more LEDs adjacent to the single switch, the LEDs configured to indicate a selected mode of operation”.
In the same field of endeavor before the effective filing date of the claimed invention, Lim teaches, as shown in figures 4-9 and taught in paragraphs 47, 52, 75, and 81-84, a main body 20 having a cavity (where cigarette 7 is received inside 52 in figure 9 and taught in paragraph 83) receiving the smoking substitute consumable 7, “the heating element (specifically the susceptor taught in paragraph 47) configured for penetrating an outer surface of the smoking substitute consumable 7 and contacting tobacco material inside the smoking substitute consumable 7”, the mode selected “depending on a duration of the press (taught in paragraph 84); and a display 29 on the main body 20 configured to show a selected mode of operation, the display comprising one or more LEDs adjacent to the single switch, the LEDs configured to indicate a selected mode of operation (paragraphs 81-84 also teach the displaying of the operational state by LED)”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Lim with the invention of Wang in order to prevent unintentional operation of the device due to incorrect pressing of a button (Lim, paragraph 8).
Claims 7-9, 13, and 72-74 are rejected under 35 U.S.C. 103 as being unpatentable over Wang (WO2019061906A1) in view of Lim (2020/0221782) and Vasiliev et al. (2014/0360515).
With regard to claim 7, Wang as modified by Lim teaches: “The smoking substitute device according to claim 6”, as shown above.
Neither Wang nor Lim does not teach: “wherein, in each mode of operation, the temperature is in a range between substantially 170 °C and 400 °C”.
In the same field of endeavor before the effective filing date of the claimed invention, Vasiliev teaches, as taught in paragraph 73: “wherein the temperature is in a range between substantially 170 °C and 400 °C”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Vasiliev with the invention of Wang as modified by Lim in order to heat the consumable without burning while not using too much power (Vasiliev, paragraphs 3 and 73).
With regard to claim 8, Wang as modified by Lim and Vasiliev teaches: “The smoking substitute device according to claim 7”, as shown above.
Wang also teaches, as taught on page 5 lines 28-32, having different modes set for different temperatures and the temperature of a mode of operation being between substantially 250 °C and 400 °C.
Vasiliev also teaches, as shown in figures 1 and 3 and taught in paragraphs 74-77: “wherein the smoking substitute device 1 comprises at least three modes of operation relating to a heating temperature of the heating element 3 (it would be inherent to control the temperature of the heater to control the heating of the consumable) during the consumption of the smoking substitute consumable 5”, and, as taught in paragraph 73, heating a smoking substitute consumable to a temperature substantially between 170 °C and 250 °C and 200 °C and 300 °C. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Vasiliev with the invention of Wang as modified by Lim and Vasiliev in order to heat the consumable without burning while not using too much power (Vasiliev, paragraphs 3 and 73).
With regard to claim 9, Wang as modified by Lim teaches: “The smoking substitute device according to claim 1”, as shown above.
Neither Wang nor Lim teach: “wherein a mode of operation relates to an amount of vapour generated during the consumption of the smoking substitute consumable, in particular wherein in a first mode of operation less vapour is generated than in a second mode of operation”.
In the same field of endeavor before the effective filing date of the claimed invention, Vasiliev teaches, as shown in figures 1 and 3 and taught in paragraph 73: “wherein a mode of operation relates to an amount of vapour generated during the consumption of the smoking substitute consumable 5, in particular wherein in a first mode of operation less vapour is generated (between puffs, as taught in paragraph 73) than in a second mode of operation (during puffs, as taught in paragraph 73)”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Vasiliev with the invention of Wang as modified by Lim in order to not use too much power (Vasiliev, paragraph 73).
With regard to claim 13, Wang as modified by Lim teaches: “The method according to claim 12”, as shown above.
Wang also teaches, as shown in figures 1-3 and taught on page 2 last line - page 3 line 2 and page 4 line 18 - page 5 line 16 of the translation: “wherein the smoking substitute device 1 comprises a main body (main body of 1)”.
Neither Wang nor Lim teach: “further comprising: inserting the smoking substitute consumable into a cavity arranged within the main body of the smoking substitute device; and penetrating the smoking substitute consumable with the heating element upon insertion of the smoking substitute consumable”.
In the same field of endeavor before the effective filing date of the claimed invention, Vasiliev teaches, as shown in figures 1 and 3: “further comprising: inserting the smoking substitute consumable 5 into a cavity (inside of 7 in figure 3) arranged within the main body 7 of the smoking substitute device 1; and penetrating the smoking substitute consumable 5 with the heating element 3 upon insertion of the smoking substitute consumable 5”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Vasiliev with the invention of Wang as modified by Lim in order to heat the consumable without burning (Vasiliev, paragraphs 49-50).
With regard to claim 72, Wang as modified by Lim teaches: “The smoking substitute device according to claim 71”, as shown above.
Neither Wang nor Lim does not teach: “wherein, in each mode of operation, the temperature is in a range between substantially 170 °C and 400 °C”.
In the same field of endeavor before the effective filing date of the claimed invention, Vasiliev teaches, as taught in paragraph 73: “wherein, in each mode of operation, the temperature is in a range between substantially 170 °C and 400 °C”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Vasiliev with the invention of Wang as modified by Lim in order to heat the consumable without burning while not using too much power (Vasiliev, paragraphs 3 and 73).
With regard to claim 73, Wang as modified by Lim and Vasiliev teaches: “The smoking substitute device according to claim 70”, as shown above.
Wang also teaches, as taught on page 5 lines 28-32, having different modes set for different temperatures and the temperature of a mode of operation being between substantially 250 °C and 400 °C.
Vasiliev also teaches, as shown in figures 1 and 3 and taught in paragraphs 74-77: “wherein the smoking substitute device 1 comprises at least three modes of operation relating to a heating temperature of the heating element 3 (it would be inherent to control the temperature of the heater to control the heating of the consumable) during the consumption of the smoking substitute consumable”, and, as taught in paragraph 73, heating a smoking substitute consumable to a temperature substantially between 170 °C and 250 °C and 200 °C and 300 °C. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Vasiliev with the invention of Wang as modified by Lim and Vasiliev in order to heat the consumable without burning while not using too much power (Vasiliev, paragraphs 3 and 73).
With regard to claim 74, Wang as modified by Lim teaches: “The smoking substitute device according to claim 70”, as shown above.
Neither Wang nor Lim teach: “wherein a mode of operation relates to an amount of vapour generated during the consumption of the smoking substitute consumable, in particular wherein in a first mode of operation less vapour is generated than in a second mode of operation”.
In the same field of endeavor before the effective filing date of the claimed invention, Vasiliev teaches, as shown in figures 1 and 3 and taught in paragraph 73: “wherein a mode of operation relates to an amount of vapour generated during the consumption of the smoking substitute consumable 5, in particular wherein in a first mode of operation less vapour is generated (between puffs, as taught in paragraph 73) than in a second mode of operation (during puffs, as taught in paragraph 73)”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Vasiliev with the invention of Wang as modified by Lim in order to not use too much power (Vasiliev, paragraph 73).
Claim 83 is rejected under 35 U.S.C. 103 as being unpatentable over Wang (WO2019061906A1) in view of Lim (2020/0221782) and Plojoux et al. (2014/0338686).
With regard to claim 83, Wang as modified by Lim teaches: “The smoking substitute device according to claim 1” and “each mode of the different modes of operation which are settable depending on the duration of the press by the user”, as shown above.
Neither Wang nor Lim teach: “wherein the device is configured to seize operation after a defined duration that depends on the mode of operation”.
In the same field of endeavor before the effective filing date of the claimed invention, Plojoux teaches, as shown in figure 1 and taught in paragraph 73: “wherein the device 100 is configured to seize operation after a defined duration that depends on the mode of operation (heating mode for predetermined time period, as taught in paragraph 73)”. It would have been obvious to a person having ordinary skill in the art at the time of the claimed invention combine the features of Plojoux with the invention of Wang as modified by Lim in order to wearing out the heater.
Response to Arguments
Applicant's arguments filed 7/1/25 have been fully considered but they are not persuasive. With regard to claim 1, the Applicant argues that the display cited in the rejection from Wang is not on the main body and does not indicate the set mode of operation. However, the Examiner is not relying on Wang for this teaching. The Applicant further argues that the mode selected by the duration of a press of a button taught by Lim does not include two modes of operation, but only a reset or a preliminary heating operation. The Examiner respectfully disagrees, since a reset and a preliminary heating operation are both operations the user would be selected. Further, paragraph 84 of Lim does not limit the modes selectable through a duration of the button press, but only as examples of possible user selections. The Applicant further argues that since Wang teaches an intelligent display to select the mode of operation, it would not have been obvious to combine Lim with Wang to provide a button and LED configuration as taught by Lim. The Examiner respectfully disagrees, since the use of the button 28 and indicators 29 are taught as performing the selection and indicator functionality, combining these features would have the advantages taught by Lim, namely to communicate the operational state to the user (Lim, paragraph 81).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUSTIN M KRATT whose telephone number is (571)270-0277. The examiner can normally be reached M-F 9am-6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Abdullah A Riyami can be reached at (571)270-3119. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JUSTIN M KRATT/ Primary Examiner, Art Unit 2831