DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding independent claim 1 and, those that depend therefrom, Applicant has recited the word “rigid” but the metes and bounds of this term is unclear. The term “rigid” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. According to a dictionary definition of the term “rigid”, it is generally understood to mean “stiff or unyielding, lacking flexibility”. While not articulated as the manner in which the term “rigid” is defined in the instant specification, this definition will be considered while examining the instant claims.
Suggested Claim Recitation
Regarding claim 14, Applicant has articulated that its heating element support “comprises a substrate having holes”; however, independent claim 1 already recites that the claimed electronic vapor provision device has a heating element support that is made from “porous ceramic”. The very definition of “porous” is that it is “full or pores or tiny holes”. So as to not cause confusion when reading and interpreting the claim, it is suggested that Applicant re-word claim 14 to recite “…wherein the heating element support further comprises a substrate having apertures”. Appropriate claim amendment is recommended.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claims 1-3, 7-11, 14 and 16-17 are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Deevi et al (US. Pat. No. 5,322,075).
Independent claim 1, and dependent claims 10 and 14, Deevi et al discloses a smoking article in which a flavor-generating medium is heated electrically to release an aerosol for inhalation by a consumer. The smoking article (10) includes a power source (121) in a first section (12) and a heater/flavor/mouthpiece (read: vaporizer) in a (second) section (11) (read: mouthpiece section) (see abstract and Fig. 1) (corresponding to the claimed “[a]n electronic vapor provision device comprising a power cell and a vaporizer”; and the “wherein the electronic vapor provision device comprises a mouthpiece section and the vaporizer is part of the mouthpiece section” recitation of claim 10).
The smoking article (10) includes a heater having resistive elements (201) (read: heater element) reinforced on a substrate (205) (read: heating element support). It is preferred that the support be a porous material such as ceramic (read: porous ceramic). While the substate is referred to as being “flexible” throughout the Deevi et al disclosure, it is also noted that in some embodiments, a “rigid” base (support) is also envisioned by Deevi et al (see col. 7, lines 24-26) Further, as apparent from Fig. 3, the substrate (205) may define “a flat rectangular” substrate surface and because the support is “porous” it would be capable of allowing liquid storage within its small holes (corresponding to the claimed “wherein the heating element support is a rigid support made from porous ceramic so as to allow liquid storage within the heating element support”; and the “wherein the heating element support comprises a substrate having holes” recitation of claim 14).
Regarding claim 2, since Deevi et al discloses that its ceramic support (205) is “porous”, and that the heating element (201) is affixed to said support (205), it follows to reason that there would necessarily be “one or more gaps” between the heating element and the heating element support – located where the “pores” of the porous ceramic substrate surface is, hence meeting the requirements of this instant claim (corresponding to the claimed “wherein one or more gaps are provided between the heating element and the heating element support”).
Regarding claim 3, as evident from Fig. 3, it is clear that the heating element (201) is on the outside of the heating element support (205) (corresponding to the claimed “wherein the heating element is on the outside of the heating element support”).
Regarding claim 7, Deevi et al’s heating element (201) may be comprised of metal and is thin and flexible which is being read as a “wire” (see claim 17) (corresponding t the claimed “wherein the heating element is a wire”).
Regarding claim 8, as evident from Fig. 1, the heater (201/205) encircles what would be considered a “vaporization cavity” and the inside surface of said heater (read: at least a part of) would be considered as being “inside the vaporization cavity” (see Fig. 1) (corresponding to the claimed “wherein the vaporizer further comprises a vaporization cavity, and wherein at least part of the heating element is inside the vaporization cavity”).
Regarding claim 9, Deevi et al states that flavor-generating medium is heated electrically to release an aerosol for inhalation by the consumer. As such, it is clear that heating is initiated in response to a user’s inhalation which means that a “negative pressure region” is automatically created in the “vaporization cavity” upon user inhalation (corresponding to the claimed “wherein the vaporizer is configured such that in use the vaporization cavity is a negative pressure region”).
Regarding claim 11, as is clearly evident in Fig. 3, the substrate (205) is “elongated in a lengthwise direction” because it extends in both the x- and y-axis directions (corresponding to the claimed “wherein the heating element support is elongated in a lengthwise direction”).
Independent claim 16, Deevi et al discloses a smoking article in which a flavor-generating medium is heated electrically to release an aerosol for inhalation by a consumer. The smoking article (10) includes a power source (121) in a first section (12) and a heater/flavor/mouthpiece (read: vaporizer) in a (second) section (11) (read: mouthpiece section) (see abstract and Fig. 1) (corresponding to the claimed “[a] vaporizer for use in an electronic vapor provision device”).
The smoking article (10) includes a heater having resistive elements (201) (read: heater element) reinforced on a substrate (205) (read: heating element support). It is preferred that the support be a porous material such as ceramic (read: porous ceramic). While the substate is referred to as being “flexible” throughout the Deevi et al disclosure, it is also noted that in some embodiments, a “rigid” base (support) is also envisioned by Deevi et al (see col. 6, lines 37-42; col. 7, lines 24-26). Further, as apparent from Fig. 3, the substrate (205) may define “a flat rectangular” substrate surface and because the support is “porous” it would be capable of allowing liquid storage within its small holes (corresponding to the claimed “wherein the heating element support is a rigid support made from porous ceramic so as to allow liquid storage within the heating element support”).
Regarding claim 17, since Deevi et al discloses that its ceramic support (205) is “porous”, and that the heating element (201) is affixed to said support (205), it follows to reason that there would necessarily be “one or more gaps” between the heating element and the heating element support - located where the “pores” of the porous ceramic substrate surface is, hence meeting the requirements of this instant claim (corresponding to the claimed “wherein one or more gaps are provided between the heating element and the heating element support”).
Allowable Subject Matter
Claims 4-6, 12-13, 15 and 18 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed on February 9, 2026 have been fully considered by the Examiner.
-Regarding the objections made to the Drawings, the Examiner is convinced by Applicant’s arguments and has, hence, withdrawn said objection.
-Regarding the rejection made under 35 USC 112(b) over the instant claims, such arguments by Applicant are not convincing and said rejection is being maintained. Applicant argues that the word “rigid”, as recited in independent claim 1, should be given its broadest reasonable interpretation consistent with the specification and states that the Examiner-provided dictionary definition of the word does not limit the scope of the broadest reasonable interpretation to which the word should be given. The Examiner, however, submits respectfully that Applicant is missing the point which is that the term “rigid” is a term of degree that lacks an objective baseline and, as such the metes and bounds of the entire claim which includes this term is unclear. Further, it is unclear where the line is drawn between a "support" and a "rigid support." The term is open to subjective interpretation by the public and examiners, creating ambiguity about what would infringe the patent. Additionally, the claim does not specify a quantifiable metric (e.g., a specific force required to bend or deform the support). A thorough review of the instant specification finds no definition, test, or objective standard provided for measuring or interpreting what level of rigidity is intended. Lastly, note that under the Supreme Court's ruling in Nautilus, Inc. v. Biosig Instruments, Inc., a patent's claims must inform those skilled in the art about the scope of the invention with reasonable certainty. Because "rigid" is not defined, the claim fails to meet this requirement and because of all of the aforementioned, the rejection is being maintained.
-Regarding the arguments made against the rejection of the instant claims over the prior art of record, specifically Deevi, the Examiner is also not convinced. Applicant argues that “when employed in an electronic vapor provision [sic] of Deevi, in contrast to the claims, the substrate of Deevi does not define a flat substrate surface”. However, the Examiner wishes to point out that Applicant has not recited the phrase “when employed in an electronic vapor provision [device]” in the independent claims, nor has it recited “when located in the vaporizer” - which Applicant also infers is recited in the claims. Applicant merely recites that its heating element support “defines a flat rectangular substrate”, and it is clear from Figure 2 of Deevi that its substrate (205) (read: heating element support) does, in fact, define that shape. Applicant further argues that Deevi does not describe a substate (205) that is “rigid”, but one that is “flexible”; however, as explained above in the rejection, while the substate is referred to as being “flexible” throughout the Deevi et al disclosure, it is also noted that in some embodiments, a “rigid” base (support) is also envisioned by Deevi et al (see col. 7, lines 24-26). Lastly, Applicant asserts that the claimed requires that the substrate is porous and made of ceramic, but Applicant asserts that Deevi does not teach that the substrate (205) is porous or ceramic. However, Deevi clearly states that its heating element can be glued/pinned to a porous and light solid support and such support may be made of ceramic (see col. 6, lines 37-42). Given the above, the current rejection will be maintained.
Conclusion
THIS ACTION IS MADE FINAL. 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 DIONNE WALLS MAYES whose telephone number is (571)272-5836. The examiner can normally be reached Mondays and Thursdays, 8:00AM - 4:00PM (EST).
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/DIONNE W. MAYES/Primary Examiner, Art Unit 1747
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