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 .
Reissue Applications
For reissue applications filed on or after September 16, 2012, all references to 35
U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the current provisions.
Claim Status
Amended patent claims 1-4 and 7 and new claims 14-28 are pending.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1-4, 7, 14-16, and 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 9,167,852 to Xiu (hereinafter Xiu) in view of US 7,726,320 to Robinson et al. (hereinafter Robinson) and WO 2015/177043 to Mironov (hereinafter Mironov ‘043).
PNG
media_image1.png
242
684
media_image1.png
Greyscale
With respect to claims 1, 3, and 4, Xiu teaches an electronic vapour inhaler including a housing elongated along a longitudinal direction between a proximal end and a distal end spaced apart from one another (see annotated Figure 1), the housing including a side wall extending between the proximal end and the distal end along the longitudinal direction transverse to an end wall 6 of the housing at the distal end; a chamber 12 configured to removably receive a capsule 13 containing a flavour-release medium (col.4, lines 33-47). Xiu uses the phrase “aroma containing” to describe the medium components. As these “aroma containing” components will be inhaled in use and include traditional “flavor” components such as cinnamon, vanillin, tobacco, and rose, the “aroma containing” components are necessarily flavor components.
Capsule 13 is heated during use by electric heating wires 14. It is noted that the phrase “configured to removably receive a capsule” does not positively recite the capsule as it is directed to only the intended use of the chamber. Thus, any further recitations related to the capsule or the contents thereof do not further limit the structure of the apparatus claim. “Expressions relating the apparatus to contents thereof during intended operation are of no significance in determining patentability of the apparatus claim.” Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). However, as the sections of the inhaler device of Xiu are separable (col.3, lines 17-21), the chamber 12 is accessible and thus, the capsule 13 is capable of being replaced and the chamber is thus, “configured to removably receive a capsule.”
The inhaler of Xiu further includes an air inlet 15 passing through the side wall at the distal end of the housing such that, during inhalation by a user, air enters the housing through the air inlet and follows an airflow path extending from the air inlet into a distal end of the capsule received in the chamber before traveling proximally through the flavour-release medium contained in the removable capsule and towards the user’s mouth (col.2, line 54 to col.3, line 23), the distal end of the capsule 13 being closer to the air inlet at the distal end of the housing than to the proximal end of the housing. See annotated Figure 1.
Xiu does not disclose the air inlet 15 is located in the end wall 6 of the inhaler or an induction heating arrangement.
PNG
media_image2.png
350
622
media_image2.png
Greyscale
Robinson teaches an elongate inhaler device 10 including an air inlet 32 in a distal end wall and a volatilizing chamber (see annotated Figure 2) located between the end wall of the distal end 13 and the proximal end 120. Robinson discloses that air enters the device through inlet 32 in the distal end and passes through the flavour-release medium within the chamber, before exiting through filter 200. See col.26, lines 14-24. As Robinson evidences that an air inlet can be successfully placed in an end wall of an inhaler device similar in structure and function to that of Xiu, it would have been obvious to place the inlet of Xiu in the end wall 6 as one would have had an expectation of success when doing so.
The heating arrangement of Xiu is an electric heating wire 14 extending into capsule 13. However, Mironov discloses that it was known in an inhaler device to use an induction heating arrangement present at a location in the inhaler housing, wherein the induction heating arrangement coil 162,182 encircles a chamber containing a capsule 260,280 so as to inductively heat an induction heatable element and thereby heat a medium contained in the capsule. See Figures 12 and 14; pg.12, lines 13-24 and pg. 13, lines 6-28. It would have been obvious to replace the heating wire 14 of Xiu with the susceptor and coil of Mironov because Mironov teaches that “no electrical contacts need to be formed between the cartridge and the device” (pg.2, lines 31-32) and as compared to electrical heaters, the use of inductive heating “provides improved energy conversion” by avoiding power losses “due to contact resistance at connections” (pg.2, lines 3-6). As explained by Mironov, “inductive heating systems do not require contact between the heating elements and the leads of the device and therefore do not suffer from the contact resistance issue” (pg.3, lines 13-15).
As to claim 2, the chamber 12 of Xiu is positioned at the distal end of the housing.
With respect to claims 7 and 14, the inhaler of Xiu includes a mouthpiece 25 at the proximal end of the housing and a conduit 16,17 extending between the chamber 12 and the mouthpiece 25.
As to claims 15 and 16, the capsule has been recited only in context of an intended use of the inhaler and will not be further addressed.
With respect to claim 28, the chamber 12 is axially aligned in the device of Xiu and is “configured to” receive a capsule by inserting into the hole created upon separation of the inhaler sections (col.3, lines 17-21). Moreover, Robinson teaches the chamber is axially aligned along the longitudinal direction of the device (see Figure above) and is configured to removably receive capsule 115 along the axial direction upon removal of mouthpiece. See col.22, line 64 to col.23, line 4; col.26, lines 30-33. It would have been obvious to replace the solid aromatic substance 13 of Xiu upon depletion, in the manner disclosed by Robinson, as being a cost-efficient means of achieving multiple uses of the inhaler device of Xiu. Further, it is noted that Xiu explicitly teaches replacement of smoke capsule 21 located within shell 20 (col.3, line 56 to col.4, line 7) and thus, recognizes the desirability of reusing the inhaler device beyond the initial use of the consumable components.
Claim(s) 17 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xiu, Robinson, and Mironov ‘043 as applied to claim 1 above, and further in view of US 2011/0120482 to Brenneise (hereinafter Brenneise).
Xiu with Robinson and Mironov ‘043 is silent as to a temperature sensor positioned along the airflow path.
PNG
media_image3.png
400
588
media_image3.png
Greyscale
Brenneise discloses an electronic vapor inhaler comprising a temperature control module 126 electrically connected to a temperature sensor (thermocouple) 350. See paras [0041, 0042]; Fig. 3. The temperature sensor is positioned along an air flow path between heating element 310 and chamber 210 containing a material which serves as the source of the vapor. Brenneise teaches that the temperature control module and connected temperature sensor regulate the power transmitted to a heating element and thus, the temperature thereof in order to prevent spontaneous combustion of the vapor source material. See para [0041]. One of ordinary skill in the art would have found it obvious to use the temperature sensor of Brenneise in the inhaler device of modified Xiu in order to prevent overheating and unintended combustion of the solid aromatic substance capsule 13.
Claim(s) 17, 19, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xiu, Robinson, and Mironov ‘043 as applied to claim 1 above, and further in view of WO 2014/205748 to Liu (hereinafter Liu).
Xiu with Robinson and Mironov ‘043 is silent as to a temperature sensor positioned along the airflow path.
Liu discloses an electronic vapor inhaler comprising an airflow path which extends from air inlet port 22 disposed at a distal end and air outlet port 11 disposed at a proximal end, wherein a vaporizer assembly 20 is disposed between the
PNG
media_image4.png
204
572
media_image4.png
Greyscale
distal and proximal ends. See Figure 2 above. A temperature detecting device 30 is located in the airflow path near the proximal end (paras [0011, 0020]). The temperature detecting device is electrically connected to a control module and an electric heating assembly for heating a vapor-generating article and the user can preset preferred vapor temperatures. See paras [0030, 0035-0038]. The temperature detecting device, control module, and heating assembly enable the inhaler device to provide the user with a vapor which has a relatively constant temperature. See para [0021]. It would have been obvious to one of ordinary skill in the art to use the heating system control arrangement and the temperature sensor of Liu in the combination of Xiu with Robinson and Mironov ‘043 in order to control the induction heater so as to provide a vapor with a constant temperature, even when the external environment of the environment varies.
Claim(s) 21-27 are is/are rejected under 35 U.S.C. 103 as being unpatentable over Robinson in view of Mironov ‘043.
PNG
media_image2.png
350
622
media_image2.png
Greyscale
With respect to claims 21, 23, and 26, Robinson teaches a housing 20 elongated between a proximal end and a distal end; a chamber positioned in the housing; and a capsule 150 removably received in the chamber. See col.26, lines 30-33. The capsule 150 comprises a shell 160 within the chamber containing a solid flavour-release medium 89, the shell comprising a base region (formed by cartridge 85) at a distal end of the capsule and a top region (formed by filter 215) at a proximal end of the capsule, with a sidewall region of shell 160 connected to and extending between the base region and the top region. See annotated Figure 2. Further, the sidewall region is formed of an impermeable material such as metal foil (col.24, lines 18-22) and the base region and top region are formed of air permeable material. Note that Robinson teaches that air flows “through the cigarette 150 (including through cartridge 85), and into the mouth-end piece 120,” through the filter 215. See col.26, lines 14-24. Lastly, Robinson discloses heating elements 70,72 present at a location in the housing to heat the flavour-release medium.
Robinson is silent to an induction heating element that encircles the chamber.
Mironov ‘043 is relied upon as set forth above.
Mironov discloses that it was known in an inhaler device to use an induction heating arrangement present at a location in the inhaler housing, wherein the induction heating arrangement 162,182 encircles a chamber containing a capsule 260,280 so as to inductively heat an induction heatable element (pg.12, lines 21-22; pg. 13, lines 9-10) and thereby heat a medium contained in the capsule. See Figures 12 and 14; pg.12, lines 13-24 and pg. 13, lines 6-28. It would have been obvious to replace the heating means 70,72 of Robinson with the susceptor and coil of Mironov because Mironov teaches that “no electrical contacts need to be formed between the cartridge and the device” (pg.2, lines 31-32) and as compared to electrical heaters, the use of inductive heating “provides improved energy conversion” by avoiding power losses “due to contact resistance at connections” (pg.2, lines 3-6). As explained by Mironov, “inductive heating systems do not require contact between the heating elements and the leads of the device and therefore do not suffer from the contact resistance issue” (pg.3, lines 13-15).
As to claim 22, Robinson teaches the air permeable material 101 of the base region portion 85 is fibrous (col.24, lines 31-34) and the air permeable material 215 of the top region is cellulose fibers (col.25, lines 59-63). One of ordinary skill in the art would have been apprised of other appropriate air permeable materials available for use in inhaler devices.
As to claim 24, the base region 85 and sidewall region of the shell 160 of Robinson are separately formed. Regardless, it has been held that the use of a one piece/integral construction instead of several parts secured together as a single unit involves no invention and would have a matter of obvious engineering choice. In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965).
With respect to claim 25, the top region of the shell comprises a “lid” (filter portion 215) coupled to the sidewall region at the proximal end via tipping material 222. See col.25, lines 64-67.
As to claim 27, as shown in the figures the base and top region are circular in cross section with the same diameter, such that the shell 160 has a cylindrical shape.
Terminal Disclaimer
The terminal disclaimer filed on 2 December 2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of 18/205316 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Response to Arguments
Applicant’s arguments, see pages 6-7, filed 2 December 2025, with respect to claims 1-4, 7, and 14-16 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Xiu, Robinson, and Mironov or Robinson with Mironov, as set forth above.
Related Proceedings
Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to
timely apprise the Office of any prior or concurrent proceeding in which Patent No.
10,448,673 is or was involved. These proceedings would include any trial before the
Patent Trial and Appeal Board, interferences, reissues, reexaminations, supplemental
examinations, and litigation.
Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to
timely apprise the Office of any information which is material to patentability of the
claims under consideration in this reissue application. These obligations rest with each
individual associated with the filing and prosecution of this application for reissue. See
also MPEP §§ 1404, 1442.01 and 1442.04.
Communication
Any inquiry concerning this communication or earlier communications from the
examiner should be directed to ELIZABETH L MCKANE whose telephone number is 5.
The examiner can normally be reached on 6:30am-4:30pm (ET) Mon-Thurs.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s
supervisor Timothy Speer can be reached on 313-446-4825. The fax phone number for
the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained at
https://patentcenter.uspto.gov/. Should you have questions on access to the Patent
Center system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or
access to the automated information system, call 800-786-9199 (IN USA OR CANADA)
or 571-272-1000.
/ELIZABETH L MCKANE/Specialist, Art Unit 3991
Conferees:
/LEE E SANDERSON/Reexamination Specialist, Art Unit 3991
/Patricia L Engle/SPRS, Art Unit 3991