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 2/5/2026 has been entered and fully considered. Claims 1-12 are cancelled. Claims 13-41 are pending. Claims 13-20 and 27 are amended. No new matter is added.
Response to Arguments
Applicant's arguments filed 2/5/2026 have been fully considered but they are not persuasive.
Applicant argues that claim 13 has been amended to find support in the disclosure of the invention, as originally filed.
Examiner agrees. The 35 U.S.C. 112(a) rejection is overcome.
Applicant argues that the amendments overcome all outstanding rejections and are allowable.
Examiner notes that the scope of the invention, has been changed. These changes will be addressed hereinafter.
claimed invention.
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.
Claim(s) 13-15 and 22 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by NIELSEN (WO 2016/050246) in view of MIRONOV et al. (US 2017/0105452).
With respect to claim 13, NIELSEN discloses a container for the liquid (Abstract) (e.g., capsule) that comprises a shell having a first end, a second end, and a shell half cylindrical shell between the two ends and formed by a semi-cylindrical surface and at least one flat surface (Figures 5A and 5B; Page 24, lines 5-31). Within the capsule is an aerosol generating substance contained within the shell (Page 1, lines 20-30; Page 2, lines 25-31; Page 3, lines 15-30; Page 13, lines 5-10). The capsule further comprising an air passage (AP) surrounded by the shell (and therefore implicitly in the shell) (Page 25, lines 5-10) such that vaporized aerosol generated is configured to be drawn out through the outlet of the AP (Page 11, lines 20-30; Page 17, lines 1-30). The heater is arranged in the AP, and thus implicitly in the shell as it is at least partially surrounded by the shell (Page 25, lines 1-20) and vaporizes the aerosol substance.
[AltContent: textbox (Outlet in which heater is arranged and out of which the vaporized aerosol passes)][AltContent: arrow][AltContent: textbox (Semi-cylindrical wall)][AltContent: arrow][AltContent: textbox (Flat surfaces )][AltContent: arrow][AltContent: arrow][AltContent: textbox (Second end)][AltContent: arrow][AltContent: textbox (First end)][AltContent: arrow]
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NIELSEN does not explicitly disclose that the heater is arranged in the capsule. MIRONOV et al. discloses an aerosol generating system wherein the cartridge may comprise a wick across the annular central passageway (e.g., equivalent to the heater wick of NIELSEN) (Paragraphs [0060]-[0061]), or a fluid permeable susceptor of ferrite mesh on the inside of the cartridge housing and has a simple and robust design (Paragraphs [0053]-[0057]). 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 the heater of NIELSEN on the inside of the cartridge of MIRONOV et al. so as to provide a simple and robust design.
With respect to claim 14, as seen in figure 5B, the first end includes a surface having an edge defined by an edge of the semi-cylindrical surface and an edge of the flat surface.
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With respect to claim 15, as seen in figure 5B , the semi-cylindrical surface extends to the flat side surface.
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With respect to claim 22, NIELSEN discloses an aerosol generating device using the capsule identified in the rejection of claim 13 (Page 1, lines 20-31; Page 16, lines 1-30; Page 17, lines 1-30; Figures 2A ; Page 19, lines 25-31 and Page 20 , lines 1-25).
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Claim(s) 16-21 and 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over NIELSEN (WO 2016/050246) in view of MIRONOV et al. (US 2017/0105452) as applied to claims 13-15 and 22 above, and further in view of LI et al. (US 2015/0305406).
With respect to claim 16, NIELSEN does not disclose that the shell includes a transparent portion.
LI et al. discloses an atomizer assembly (Abstract) that houses a liquid tank, 111. The liquid tank is made of a transparent material so that the quantity of tobacco left in the tank can be seen (Paragraph [0039]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention to form the capsule walls of transparent material as taught by LI et al. so that the level of the liquid material can be determined.
With respect to claim 17, NIELSEN discloses a container for the liquid (Abstract) (e.g., capsule) that comprises a shell having a first end, a second end, and a shell half cylindrical shell between the two ends and formed by a semi-cylindrical surface and at least one flat surface (Figures 5A and 5B; Page 24, lines 5-31). Within the capsule is an aerosol generating substance contained within the shell (Page 1, lines 20-30; Page 2, lines 25-31; Page 3, lines 15-30; Page 13, lines 5-10). The capsule further comprising an air passage (AP) surrounded by the shell (and therefore implicitly in the shell) (Page 25, lines 5-10) such that vaporized aerosol generated is configured to be drawn out through the outlet of the AP (Page 11, lines 20-30; Page 17, lines 1-30). The heater is arranged in the AP, and thus implicitly in the shell as it is at least partially surrounded by the shell (Page 25, lines 1-20) and vaporizes the aerosol substance. NIELSEN further discloses electrical connections in the shell to connect the heater to a power source (Page 34, lines 20-31; Page 17, lines 20-30; Figure 1)
[AltContent: textbox (Outlet in which heater is arranged and out of which the vaporized aerosol passes)][AltContent: arrow][AltContent: textbox (Semi-cylindrical wall)][AltContent: arrow][AltContent: textbox (Flat surfaces )][AltContent: arrow][AltContent: arrow][AltContent: textbox (Second end)][AltContent: arrow][AltContent: textbox (First end)][AltContent: arrow]
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NIELSEN does not disclose that the shell includes a transparent portion, such as the first end.
LI et al. discloses an atomizer assembly (Abstract) that houses a liquid tank, 111. The liquid tank is made of a transparent material so that the quantity of tobacco left in the tank can be seen (Paragraph [0039]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention to form the capsule walls of transparent material as taught by LI et al. so that the level of the liquid material can be determined.
Additionally, it would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to have the first end surface made of the transparent material so that the user can check the level of the container simply by removing the mouthpiece and not having to remove the cartridge.
Given that the claim defines the “transparent portion” as the first end, the second end and electrical connection are outside of this “transparent portion”. Specifically, the second end is opposite the first end, and the electrical connections are in the flat surface and semi-cylindrical surfaces. Moreover, given that the outlet in NIELSEN is defined as being in the shell by being partially surrounded by it, it is not in the transparent portion (as defined above), but outside of it.
NIELSEN does not explicitly disclose that the heater is arranged in the capsule. MIRONOV et al. discloses an aerosol generating system wherein the cartridge may comprise a wick across the annular central passageway (e.g., equivalent to the heater wick of NIELSEN) (Paragraphs [0060]-[0061]), or a fluid permeable susceptor of ferrite mesh on the inside of the cartridge housing and has a simple and robust design (Paragraphs [0053]-[0057]). 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 the heater of NIELSEN on the inside of the cartridge of MIRONOV et al. so as to provide a simple and robust design.
With respect to claim 18, as seen in figure 5B, shell has a flat side surface between the first and second ends.
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With respect to claim 19, as seen in figure 5B, the shell has a semi-cylindrical shaped formed by a semi-cylindrical surface and a flat side surface.
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With respect to claim 20, by defining CT (See figure 5A of NIELSEN) as the “electrical connections”, then the flat side surfaces and the first end are considered the “transparent portion”.
With respect to claim 21, as seen in figure 5B of NIELSEN, there exists and end of the transparent portion between the first and second ends.
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With respect to claim 32, NIELSEN discloses an aerosol generating device using the capsule identified in the rejection of claim 13 (Page 1, lines 20-31; Page 16, lines 1-30; Page 17, lines 1-30; Figures 2A ; Page 19, lines 25-31 and Page 20 , lines 1-25).
Allowable Subject Matter
Claims 29-30 and 33-40 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Neither NIELSEN or LI et al. disclose the claimed first portion having a maximum cross-sectional area which is larger than a second portion, along with the claimed space defined in the outside of these portions as well as along a length of the elongated body from the first to the second portion, in which the capsule can be placed, per se.
SHEIKH et al. (US 2010/0031968) discloses an electronic smoking device (Abstract). The device includes a cartridge portion, 30 and a power portion, 40 (Paragraph [0040]-[0043]; Figure 1). The first portion appears to have a maximum cross section and the second portion appears to have a smaller one. However, it appears (as also in NIELSEN and LI et al.) that the “space” is only defined in the first portion housing the capsule. There does not appear to be any space in the second portion in which the capsule can be accommodated.
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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