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
Claim 1 is amended. Claims 25 and 27 are withdrawn. Claim 26 is cancelled. Claims 1-24 and 28 are presently examined.
Applicant’s arguments regarding the rejections under 35 USC 112(b) have been fully considered and are persuasive. The rejections of 9/4/2025 are overcome.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/4/2025 has been entered.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “4” has been used to designate both the control unit overall and the outer wall of the control unit. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities: The word ‘be” is used where “the” would be grammatically correct (page 9, line 16). Appropriate correction is required.
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.
Claims 1-2, 8, 10, 18, 20, 22-24 and 28 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Illidge (US 2022/0202075).
Regarding claim 1, Illidge discloses a smoking substitute system in the form of a main body (figure 21, reference numeral a520) that receives a consumable in a cavity of the main body ([0182], figure 21, reference numeral a550). The main body and cavity together are considered to meet the claim limitation of a main body having a receptacle, and the consumable is considered to meet the claim limitation of a cartridge. The consumable contains an e-liquid ([0183], figure 21, reference numeral a560), which is considered to meet the claim limitation of adapted to receive aerosolizable material. The main has an outer wall (figure 21), which is considered to meet the claim limitation of a receptacle wall that defines the receptacle, an air inlet (figure 21, reference numeral a522), which is considered to meet the claim limitation of an air inlet extending through the receptacle wall, and a plenum chamber that is located in the main body ([0183], figure 21, reference numeral a524), which is considered to meet the claim limitation of the plenum chamber located in the receptacle since the receptacle is defined as including the main body. The consumable has an air inlet that is located immediately adjacent to the plenum chamber ([0183], figure 21, reference numeral a572). Air flows through the device in the claimed manner (figure 21).
Regarding claim 2, Illidge discloses that two airflow paths are defined in the main body and reach the plenum chamber on opposite sides ([0183], figure 21, reference numeral a527). The upper portion of the airflow paths are considered to define first and second inlet orifices.
Regarding claim 8, the portion of the outer housing surround the plenum chamber of Illidge is considered to meet the claim limitation of surrounding wall.
Regarding claim 10, Illidge discloses that the main body has a distal end made from a wall ([0189], figure 21, reference numeral a532), which is considered to meet the claim limitation of a first end with a first wall located at it. The side wall of the main body is considered to meet the claim limitation of a second receptacle wall (figure 21). The main body air inlet is located in a sidewall of the housing adjacent to an upstream end of the plenum chamber [0023], which is considered to meet the claim limitation of each air inlet extending through the at least one second receptacle wall. The end of the main body into which the consumable is inserted is considered to meet the claim limitation of a second end.
Regarding claim 18, the open area immediately above the air inlet of Illidge is considered to meet the claim limitation of an entrance chamber (figure 21).
Regarding claim 20, Illidge discloses that the plenum chamber is covered by the consumable when the consumable is inserted (figure 21).
Regarding claim 22, Illidge discloses that an electrical connection between the main body and the consumable is formed by electrical contacts on the main body ([0185], figure 21, reference numeral a526), which are considered to meet the claim limitation of at least one electrode.
Regarding claim 23, Illidge discloses that the consumable has a tank that contains e-liquid ([083], figure 21, reference numeral a552), which is considered to meet the claim limitation of an internal chamber. Air flows through the air inlet and into the consumable ([0183], figure 21, reference numeral a527), which is considered to meet the claim limitation of adapted for the flow of air to pass.
Regarding claim 24, Illidge discloses that the main body air inlet is located in a sidewall of the housing adjacent to an upstream end of the plenum chamber [0023], and that the side wall is perpendicular to the airflow into the consumable (figure 21).
Regarding claim 28, Illidge discloses that the consumable has an outlet (figure 21, reference numeral a574) at its downstream end ([0183], figure 21, reference numeral a554), which is considered to meet the claim limitation of a mouthpiece.
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Illidge (US 2022/0202075) in view of Lin (US 10,226,075).
Regarding claim 3, Illidge discloses all the claim limitations as set forth above. Illidge additionally discloses that the main body comprises a puff sensor that detects inhalation so that a controller activates the device [0055]. Illidge does not explicitly disclose (a) the puff sensor located closer to the first inlet orifice than the second inlet orifice and (b) the puff sensor having an air flow receiving orifice.
Regarding (a), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to locate the puff sensor closer to the first inlet orifice. One would have been motivated to do so since there is no evidence of record that the specific location of the puff sensor is critical. Rearrangement of parts where both arrangements are known equivalents is a design choice that gives predicable results. See MPEP § 2144.04 VI C.
Regarding (b), Lin teaches an electronic cigarette (column 3, lines 27-31) having an air sensor (figure 3, reference numeral 4) that is mounted in an air sensor holder (column 3, lines 32-36, figure 3, reference numeral 5). The holder has a through hole (figure 9, reference numeral 52), which is considered to meet the claim limitation of an air flow receiving orifice. Lin additionally teaches that this sensor allows the heating element to be activated when a user inhales on the cigarette (column 3, liens 37-52).
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the sensor of Illidge for the sensor of Lin. One would have been motivated to do so since Illidge and Lin both teach sensors that activate a smoking article by detecting airflow. The simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See MPEP § 2143, B.
Regarding claim 4, modified Illidge teaches all the claim limitations as set forth above. Illidge additionally discloses that the air inlet is located on the upstream side of the plenum chamber (figure 21). Modified Illidge does not explicitly disclose the through hole being located upstream of the plenum chamber.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to locate the puff sensor upstream of the plenum chamber. One would have been motivated to do so since there is no evidence of record that the specific location of the puff sensor is critical. Rearrangement of parts where both arrangements are known equivalents is a design choice that gives predicable results. See MPEP § 2144.04 VI C.
Claims 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Illidge (US 2022/0202075) in view of Lin (US 10,226,075) as applied to claim 3 above, and further in view of Potter (US 2021/0274846).
Regarding claim 5, modified Illidge discloses all the claim limitations as set forth above. Illidge additionally discloses that the vapor is formed from an e-liquid (figure 21, reference numeral a560) that is transported to a heater (figure 21, reference numeral a564) by a wick directly above the air inlet ([0183], figure 21, reference numeral a562). Modified Illidge does not explicitly teach an aerosolizable material directing portion comprising a physical barrier.
Potter teaches a primary airflow path having a sump that retains liquid that leaks from a wick or associated components and travels upstream along the airflow path under the influence of gravity ([0036], figure 8, reference numeral 179). The sump traps the liquid to prevent from flowing further down the airflow channel [0036]. The walls of the sump are considered to meet the claim limitation of a physical barrier.
It would therefore have been obvious to position a sump on the planar portion defining the bottom of the plenum chamber of modified Illidge. One would have been motivated to do so since Potter teaches that positioning a pump below a wick traps liquid that leaks from a wick and prevents it from travelling further up a primary airflow channel.
Regarding claim 6, the walls of the sump of modified Illidge are considered to be part of the plenum chamber since they are located at the bottom of the plenum chamber.
Regarding claim 7, Potter teaches that the sump is in the form of a basin (figure 8).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Illidge (US 2022/0202075) in view of Scatterday (US 8,875,715).
Regarding claim 9, Illidge discloses all the claim limitations as set forth above. Illidge does not explicitly disclose the outer housing being resilient.
Scatterday teaches an electronic cigarette that has a resilient housing to simulate a traditional cigarette (abstract).
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the outer housing of Illidge from the resilient material of Scatterday. One would have been motivated to do so since Scatterday teaches a housing simulates a traditional cigarette.
Claims 11-12 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Illidge (US 2022/0202075).
Regarding claim 11, Illidge discloses all the claim limitations as set forth above. Illidge does not explicitly disclose the air inlet being located closer to the distal end of the main body along the side wall than the point at which the cartridge is received.
However, it would have been obvious to one of ordinary skill in the art to locate the air inlet closer to the distal end of the main body along the side wall than the point at which the cartridge is received. One would have been motivated to do so since there is not evidence that the specific location of the air inlet is critical so long as it is upstream of the plenum chamber. Rearrangement of parts where both arrangements are known equivalents is a design choice that gives predicable results. See MPEP § 2144.04 VI C.
Regarding claim 12, Illidge discloses all the claim limitations as set forth above. Illidge does not explicitly disclose the air inlet being located in a plane that intersects the plenum chamber.
However, it would have been obvious to one of ordinary skill in the art to locate the air inlet such that it is in a plane that also intersects the plenum chamber. One would have been motivated to do so since there is no evidence that the specific location of the air inlet is critical so long as it is upstream of the plenum chamber. Rearrangement of parts where both arrangements are known equivalents is a design choice that gives predicable results. See MPEP § 2144.04 VI C.
Regarding claim 17, Illidge discloses all the claim limitations as set forth above. Illidge does not explicitly disclose the consumable having a non-circular cross section.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the consumable have a non circular cross section. One would have been motivated to do so since there is no evidence that the specific shape of the consumable is critical. The change in form or shape, without any new or unexpected results, is an obvious engineering design. See MPEP § 2144.04 IV B.
Claims 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Illidge (US 2022/0202075) in view of Thorens (US 9,420,829).
Regarding claim 13, Illidge discloses all the claim limitations as set forth above. Illidge additionally discloses that the main body air inlet is located in a sidewall of the housing adjacent to an upstream end of the plenum chamber [0023]. Illidge does not explicitly disclose multiple air inlets that do not have parallel air flows.
Thorens teaches a smoking system having an air inlet that is part of the air flow route (abstract) made up of three air inlets that are spaced around the housing (column 10, lines 3-9). It is evident that not all of the air flow paths through the inlets can be parallel when three or more inlets are present.
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide several air inlets spaced around the housing Illidge such that they are not parallel. One would have been motivated to do so since Thorens teaches that side wall air inlets can be spaced around the housing. The use of a known technique to improve similar devices (methods or products) in the same way is likely to be obvious. See MPEP § 2143, C.
Regarding claim 14, modified Illidge teaches all the claim limitations as set forth above. Modified Illidge does not explicitly teach the axial separation of the air inlets.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to locate the air inlets of modified Illidge at the claimed axial spacing. One would have been motivated to do so since Thorens does not teach that the specific axial position of the air inlets is critical. Rearrangement of parts where both arrangements are known equivalents is a design choice that gives predicable results. See MPEP § 2144.04 VI C.
Regarding claim 15, modified Illidge teaches all the claim limitations as set forth above. Modified Illidge does not explicitly teach the entrances to the air inlets being chamfered.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the entrances to the air inlets be chamfered. One would have been motivated to do so since there is no evidence that the specific shape of the openings of the air inlets is critical. The change in form or shape, without any new or unexpected results, is an obvious engineering design. See MPEP § 2144.04 IV B.
Regarding claim 16, modified Illidge teaches all the claim limitations as set forth above. Modified Illidge does not explicitly teach the exits of the air inlets being chamfered.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the exits of the air inlets be chamfered. One would have been motivated to do so since there is no evidence that the specific shape of the exits of the air inlets is critical. The change in form or shape, without any new or unexpected results, is an obvious engineering design. See MPEP § 2144.04 IV B.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Illidge (US 2022/0202075) in view of Liu (US 2017/0208866).
Regarding claim 19, Illidge discloses all the claim limitations as set forth above. Illidge additionally discloses that the main body air inlet is located in a sidewall of the housing adjacent to an upstream end of the plenum chamber [0023] and that multiple air inlets can be present [0172]. Illidge does not explicitly teach first and second entrance chambers.
Liu teaches an electronic cigarette having at least one first air inlet hole (abstract, figure 8, reference numeral 321) and a second air inlet hole (figure 8, reference numeral 212) are communicated with an accommodation chamber that redirects the air flow ([0054], figure 8, reference numeral 211). The accommodation chamber forms two chambers that are separated by a central second insulating member ([0046], figure 8, reference numeral 23). Liu additionally teaches that this arrangement reduces noise produced by the device by preventing direct airflow [0035].
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the side air inlets of Illidge with the multiple accommodation chambers of Liu. One would have been motivated to do so since Liu teaches an arrangement that reduces noise by preventing direct airflow.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Illidge (US 2022/0202075) in view of Reevell (US 2022/0361574).
Regarding claim 21, Illidge discloses all the claim limitations as set forth above. Illidge does not explicitly disclose an outer chamber.
Reevell teaches a heating chamber for an aerosol generation device (abstract) that is surrounded by an insulating member [0067] comprising a double walled metal tube having a vacuum contained between the walls [0068]. It is evident that the vacuum must be in a sealed chamber since it would otherwise not have a space to form, and that the metal tube supports the cartridge since it is part of the housing ([0108], figure 5A, reference numeral 146).
Response to Arguments
Regarding the rejections under 35 USC 102, applicant’s arguments have been fully considered but they are not persuasive. Applicant argues that the body and receptacle are two separate components and that Illidge therefore does not disclose the claimed arrangement. However, a review of applicant’s specification that the receptacle wall that defines the receptacle is the same as the outer wall that defines the control unit, which forms the entire base of the device (page 9, lines 6-26, figure 1, reference numerals 4, 12). Although applicant’s specification does indicate that the receptacle is equivalent to a receiving section of the control unit (page 9, lines 6-26), but does not set forth where that boundary is.
Indeed, the limitation “at least one receptacle wall, the at least one receptacle wall defining the receptacle” indicates that the receptacle cannot have a bottom other than the bottom portion of the device, since, if the outer wall completely defines the receptacle, there can be no intermediate section that extends through the control unit to define a lower portion of the receptacle, since that would not be an outer wall. Furthermore, there is no possible way for the plenum chamber to be within the receptacle unless the receptacle is defined as including some portion of the control unit internal area. The plenum chamber cannot exist in the space into which the cartridge is inserted since that would prevent the cartridge itself from being inserted. The plenum unit must therefore be located within the body of the control unit. The interpretation of receptacle as set forth above is therefore considered to be the broadest reasonable interpretation in light of applicant’s specification as required by MPEP § 2111.
Regarding the rejections under 35 USC 103, applicant’s arguments have been fully considered but they are not persuasive since they are based solely on the alleged dependence of the claims from an allowable claim, however, all examined claims are rejected as set forth above.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 RUSSELL E SPARKS whose telephone number is (571)270-1426. The examiner can normally be reached Monday-Friday, 9:00 am-5 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at 571-270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUSSELL E SPARKS/ Primary Examiner, Art Unit 1755
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