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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “a source of energy for heating” and “a movement mechanism arranged to enable movement of the aerosol generating medium relative to the source of energy for heating” in claims 1 and 13.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. The corresponding structure of “a source of energy for heating” is a resistive heater (Page 5), an induction coil (Page 6), or a chemically activated heater (Page 7). The corresponding structure of a “movement mechanism” is “a rotating element around which the substrate 110 can rotate, such as a ball bearing” or “a rotatable shaft which is driven by a motor around a bearing” (Page 9).
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 5-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sprinkel et al. (US 5649554).
Claims 1, 5-7, 10-12. Sprinkel et al. discloses a tobacco flavor heating system comprising a housing portion 20 enclosing and containing heating system 30 for heating the tobacco to generate tobacco flavors. Housing portion 20 is configured to receive, via insertion, a removable and potentially replaceable or disposable portion 100 which comprises a tobacco bearing or containing substrate or supply 110 and a flavor delivery system 130. Mouthpiece 132 of the delivery system is preferably registered with the inserted disposable portion 100 to be in fluid communication with a heater registry chamber or section 24 which is sealed except for communication with air entry ports 22 in the housing 20. The tobacco bearing disc or spiral can comprise a number of tobacco portions sufficient to provide a large number of puffs, e.g., more than a conventional cigarette, e.g., enough for a full day or more of smoking (Column 5, lines 18-62). When the smoker draws on the mouth end, air is drawn from the outside of the lighter via the air ports or openings 22; through the heater registry chamber 24 and specifically past the heater 32 which is in registry with a suitable tobacco containing structure as discussed below to generate desired tobacco flavors to mix with and entrain the tobacco flavors; and through the mouthpiece 132 and filter 134 to the smoker (Column 6, lines 14-31; Figures 1 and 2). The heater 32 (source of energy for heating) of the lighter 10 can be a serpentine-shaped metallic heater made of any suitable conductor of appropriate electrical resistivity to generate the desired temperature (Column 6, line 65 – Column 7, line 1). An insertable and replaceable or disposable substrate 110 is shown in the form of a single, preferably circular disc 112 (substrate comprising aerosol generating medium). Disc 112 can comprise a supporting substrate (carrier layer/base) having the geometric structures described herein and having portions of tobacco located thereon, wherein the supporting substrate is preferably cellulose (Column 8, line 50 – Column 9, line 2; Figures 1 and 2). Disc 112 and housing 114 are each provided with apertures or hubs, which are preferably concentric relative to the disc, for engagement of the disc 112 with a drive capstan 72 of the disc movement system 70 (movement mechanism) located in the lighter. In the view of FIG. 4, housing 114 has an aperture 117 located through the housing such that drive capstan or axle 72 passes therethrough for rotatable engagement with the hub 118 of the disc (Column 9, lines 32-40; Figure 1).
Claim 8. Sprinkel et al. discloses that the provision of a pie-shaped registry via an appropriately shaped access window 116 and heater 32 permits a circular heating path to be employed as the disc 112 rotates in the desired direction to expose an unused portion for heating and to remove a neighboring used portion from registry. Preferably, the rotation of the disc 112 occurs immediately after each puff, assuming an initial registry for the first puff, to avoid any possible drawing of off-tastes from a previously heated portion upon subsequent puffing. The puff sensor 26 (detector) is located within the disc chamber which can be sealed after accepting the disc. As shown if FIG. 5, the sensor 26 alerts the control circuit 50 (motion monitoring system) when the smoker draws on the first end of the mouthpiece section 132. The control circuit 50 first sends a signal to activate heater 32 for heating of the tobacco. More specifically, the activated heater 32 heats the registered and unused pie-shaped section or wedge of disc 112 and generates the desired flavors, which are drawn via a mouthpiece section to the smoker. The control circuit 50 sends a signal to advance the rotation of the disc 112 or the heater 32 relative to the disc after a sufficient time has passed for the generated flavors to be drawn in by the smoker. The drive axle 72 is preferably driven by a small electrical motor and associated gearing 24 powered by battery 25 and controlled by control circuitry 50 (Column 10, lines 9-48).
Claim 9. Sprinkel et al. discloses disc window 116 of the disc housing 114 may have any suitable shape to ensure registry with the heater 32 to permit generation of the desired smoke when the smoker puffs. To optimally utilize the useful surface area of a circular disc 112 as described, a pie-piece or wedge shaped window as shown in FIG. 4 is preferred rather than a square or other geometric shape. The portion of the disc 112 registered with the heater 32 is defined by edges of the window 116 which extend radially outward relative to the disc 112. The provision of a pie-shaped registry via an appropriately shaped access window 116 and heater 32 permits a circular heating path to be employed as the disc 112 rotates in the desired direction to expose an unused portion for heating and to remove a neighboring used portion from registry. Such a circular path optimizes use of the available disc surface area and simplifies registry. Radial spacings, e.g., non-tobacco portions, may be provided between the tobacco portions (discrete doses) to compensate for possible registry misalignments while avoiding nonuse of any misaligned or nonaligned tobacco portions. Preferably, the rotation of the disc 112 occurs immediately after each puff, assuming an initial registry for the first puff, to avoid any possible drawing of off-tastes from a previously heated portion upon subsequent puffing (Column 9, line 60 – Column 10, line 23; Figure 4).
Claim 13. Sprinkel et al. discloses a method of using a tobacco flavor heating system comprising a housing portion 20 enclosing and containing heating system 30 for heating the tobacco to generate tobacco flavors. Housing portion 20 is configured to receive, via insertion, a removable and potentially replaceable or disposable portion 100 which comprises a tobacco bearing or containing substrate or supply 110 and a flavor delivery system 130. Mouthpiece 132 of the delivery system is preferably registered with the inserted disposable portion 100 to be in fluid communication with a heater registry chamber or section 24 which is sealed except for communication with air entry ports 22 in the housing 20. The tobacco bearing disc or spiral can comprise a number of tobacco portions sufficient to provide a large number of puffs, e.g., more than a conventional cigarette, e.g., enough for a full day or more of smoking (Column 5, lines 18-62). When the smoker draws on the mouth end, air is drawn from the outside of the lighter via the air ports or openings 22; through the heater registry chamber 24 and specifically past the heater 32 which is in registry with a suitable tobacco containing structure as discussed below to generate desired tobacco flavors to mix with and entrain the tobacco flavors; and through the mouthpiece 132 and filter 134 to the smoker (Column 6, lines 14-31; Figures 1 and 2). The heater 32 (source of energy for heating) of the lighter 10 can be a serpentine-shaped metallic heater made of any suitable conductor of appropriate electrical resistivity to generate the desired temperature (Column 6, line 65 – Column 7, line 1). An insertable and replaceable or disposable substrate 110 is shown in the form of a single, preferably circular disc 112 (substrate comprising aerosol generating medium). Disc 112 can comprise a supporting substrate (carrier layer/base) having the geometric structures described herein and having portions of tobacco located thereon, wherein the supporting substrate is preferably cellulose (Column 8, line 50 – Column 9, line 2; Figures 1 and 2). Disc 112 and housing 114 are each provided with apertures or hubs, which are preferably concentric relative to the disc, for engagement of the disc 112 with a drive capstan 72 of the disc movement system 70 (movement mechanism) located in the lighter. In the view of FIG. 4, housing 114 has an aperture 117 located through the housing such that drive capstan or axle 72 passes therethrough for rotatable engagement with the hub 118 of the disc (Column 9, lines 32-40; Figure 1).
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Sprinkel et al. (US 5649554).
Claim 16. Sprinkel et al. discloses the method of claim 13 wherein when the smoker draws on the mouthpiece, a puff sensor 26 detects the air flow and causes control circuitry 50 to actuate the heating mechanism 30 for an appropriate predetermined period of time, evolving tobacco flavors from the tobacco containing structure to be carried along with the drawn air flow to the smoker (Column 6, lines 14-31). While Sprinkel et al. does not explicitly disclose that different portions of the disc are heated for different periods of time, Sprinkel et al. does disclose that the heater is heated for a period of time that is “appropriate” given the air flow detected by the puff sensor (i.e. heater is activated for a longer period of time when the puff sensor detects a longer puff). It would have been obvious to one of ordinary skill in the art before the effective filing date that the user may puff on the device for different lengths of time (thus activating the heater for different lengths of time) when different portions of the disc are exposed to heat.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Sprinkel et al. (US 5649554) in view of Raichman (US 2019/0208823).
Claim 17. Sprinkel et al. discloses the method of claim 13 wherein the heater 32 of the lighter 10 can be a serpentine-shaped metallic heater made of any suitable conductor of appropriate electrical resistivity to generate the desired temperature (Column 6, line 65 – Column 7, line 1) but does not explicitly disclose heating one portion of aerosol generating medium at a first power level and heating a different portion of the aerosol generating medium at a second power level that is different from the first power level.
Raichman discloses a smoking device comprising control circuitry configured to determine a classification of the plant material, and at least partially in response thereto, to determine the first smoking profile and the updated smoking profile. In some applications, based upon the classification of the plant material, the control circuitry is configured to determine a manner in which to vary a temperature to which to drive the heating element to heat the plant material, in response to changes in the airflow through the vaporizing unit. In some applications, the plant material is housed inside a capsule, and the control circuitry is configured to determine the classification of the plant material automatically by measuring a characteristic of the capsule ([0052]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the control circuitry and heater of Sprinkel et al. such that it is capable of determining a classification of plant material/aerosol generating medium and heat the plant material/aerosol generating medium to a specific temperature based upon the classification of the plant material/aerosol generating medium, in order to allow a user to smoke a variety of different plant materials/aerosol generating medium thus making the smoking device more versatile.
Allowable Subject Matter
Claims 2, 3, 14, and 15 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: Sprinkel et al. discloses the disc 112 and housing 114 are each provided with apertures or hubs, which are preferably concentric relative to the disc, for engagement of the disc 112 with a drive capstan 72 of the disc movement system 70 (movement mechanism) located in the lighter (Column 9, lines 32-40; Figure 1). Sprinkel et al. does not disclose that the disc movement system 70 (movement mechanism) is arranged to enable linear motion of the heater 32 (source of energy for heating) or circular disc 112 (substrate comprising aerosol generating medium) along an axis arranged between the heater 32 and the first surface of the circular disc 112.
Response to Arguments
Applicant's arguments filed 8/8/25 have been fully considered but they are not persuasive. Applicant argues that Sprinkel fails to disclose an indexing system arranged to enable indexed motion of the aerosol generating medium. Applicant argues that Sprinkel teaches a disc movement system 70 but fails to disclose that the disc movement system is indexed as opposed to continuous. Examiner disagrees, as Sprinkel teaches “a section of the disc is heated and then relative rotational movement between the heater and disc is effected to register a successive disc portion with the heater, preferably in a radially sequential order” (Column 3, lines 51-57); “The tobacco supply is then discretionarily rotated to move this heated tobacco section out of registry with the heater and to move a new tobacco section into registry therewith” (Column 5, lines 11-18). Furthermore, Sprinkel teaches “Preferably, the rotation of the disc 112 occurs immediately after each puff, assuming an initial registry for the first puff, to avoid any possible drawing of off-tastes from a previously heated portion upon subsequent puffing” (Column 10, lines 19-23) which indicates that the movement is indexed as opposed to continuous.
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 Katherine A Will whose telephone number is (571)270-0516. The examiner can normally be reached Monday-Friday 10:00AM-6:00PM(EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Wilson can be reached on (571)270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KATHERINE A WILL/Primary Examiner, Art Unit 1747