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 .
Status of the Claims
Claims 16-30 and 32-33 are pending and subject to this Office Action. Claim 33 has been added. Claim 31 has been cancelled. Claims 25-30 are withdrawn from consideration.
Response to Arguments
Applicant's arguments, pages 6-18, filed 1 with respect to the rejections of claims 16-24, and 32 under 35 USC § 103 have been fully considered but they are not persuasive.
Applicant argues, page 10-11, that Mironov does not teach sequentially activating and deactivating groups of electric heater based on user inhalation. Applicant further argues that a person of ordinary skill would not combine the teachings of Mironov with the teachings of Rusico as Rusico teaches a heating element that moves with respect to the substrate.
The Examiner respectfully disagrees with this interpretation. Mironov is used to teach the sequential activation and deactivation of a heating element. Rusico is used to modify Mironov, by teaching that a movement or activation of a sequential heating element that would be connected to an airflow sensor that monitors a user’s inhalation which then moves the heater to the next portion of the substrate. Thus, a person having ordinary skill would recognize that Mironov, as modified by Rusico, would deactivate the heater of one section of substrate when the substrate was exhausted and then activate the next section of substrate based on the user’s inhalation.
Applicant argues, page 12-14, that a person having ordinary skill would not have been motivated to modify Mironov using the teachings of Deforel.
The Examiner respectfully disagrees. Mironov teaches that the aerosol forming substrate is a sheet of material and discloses a general composition including non-tobacco fibers, aerosol-formers, humectants, plasticisers, flavourants, fillers, aqueous and non-aqueous solvents, and combinations thereof. [0041] However, Mironov only provides this general composition and does not disclose specific components. Similarly, Rusico also teaches the aerosol generating substrate is comprised of a suitable aerosol former such as polyhydric alcohols, and tobacco containing materials and non-tobacco containing materials.[0034]
Deforel is used to teach the possible specific components and percent composition. Deforel teaches the use of a cellulose material that is used in the formation of an aerosol generating sheet. Deforel teaches the cellulose material facilitates the formation of the sheet (p4 ln 34-35) and as such reads on the cellulose film-forming agent. Deforel also teaches that the sheet also contains sugar alcohols (known humectants), binders (plasticizers), aerosol formers (names polyhydric alcohols specifically), flavorants, and water (a known solvent). As such it would have been obvious to the prior art , such as Deforel, to determine the amount of cellulose material that would be in a sheet of aerosol generating material.
Applicant argues, page 15-17, that John does not provide a rational that would lead a person having ordinary skill to modify the teachings of Mironov and Rusico as modified by Deforel.
John [138] teaches that this composition when dried leads to an aerosol generating material that allows the aerosol to be generated at a temperature that is comfortable for the user. Additionally, one of ordinary skill in the art would recognize that increasing the quantity/concentration of aerosol generating agent would lead to an increase in the amount of aerosol that is generated.
The following is a modified rejection based on amendments made to the claims.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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 16 to 24 are rejected under 35 U.S.C. 103 as being unpatentable over Mironov et al (US20170318862A1) and further in view of Rusico, et al (US20140301721A1) and Deforel, et al (WO2018122095A1).
Regarding claim 16, Mironov teaches an aerosol generating system that is comprised of a heating assembly, a power supply, and control circuitry that is designed to heat an aerosol generating article. The control circuitry controls the power supply to at least one electric heater in the device.[0048] Mironov goes on to teach that the controller can be configured to activate a plurality of electric heaters in groups with each group being activated and deactivated sequentially. [0081]
Mironov does not teach that sequential heating element would be controlled based on user inhalation.
Rusico, directed to the design of aerosol generating devices with heaters, teaches an aerosol generating device with a substrate located in a device cavity and a positioning mechanism (drive assembly) coupled to a heating element and the housing configured to move the heating element between a plurality of positions within the cavity. (Abstract) Rusico teaches that the heater can be electronically activated and controlled using a microcontroller. [0027] The heating elements can be moved as to heat the substrate in a sequential manner thus heating different portions of the substrate.[0032] The device further comprises a sensor for detecting air flow that would indicate a user taking a puff and that the sensor is connected to the power supply. [0041]
Rusico teaches after the insertion of an aerosol generating substrate is inserted into the device the heating element is positioned along the substrate. When the air flow thorough the device (user puff) is detected the microcontroller supplies power to the heating element and after a fixed duration or amount of power the heating element is switched off. If the microcontroller determines that the substrate has remaining puffs the heating element is moved to a new position along the aerosol generating substrate by the positioning mechanism (drive assembly) where the heating element repeats the above process until the substrate is exhausted or the user ceases use. ([0067-0069], Fig 7)
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Mironov by using a heating element that moves the heating location based on the user’s inhalation as taught by Rusico because both Mironov and Rusico are directed to aerosol generating devices, Rusico teaches the use of a movable heating element within the aerosol-forming substrate means that efficient heating can be accomplished with minimal heat losses [0005], and this involves the use of known technique of using a moving heating element to improve similar devices in the same way
Mironov teaches that the aerosol generating material comprises tobacco, binders, non-tobacco fibers (cellulose material), and polyhydric alcohols. [0041] Rusico teaches the aerosol generating substrate is comprised of a suitable aerosol former such as polyhydric alcohols, and tobacco containing materials and non-tobacco containing materials.[0034] However, neither Mironov or Rusico teach the composition of the aerosol generating substrate material with respect to the amount of tobacco or polyhydric alcohols that can comprise the aerosol generating substrate.
Deforel, directed to the design of a nicotine and cellulose containing sheet, teaches a sheet that comprises a cellulostic material comprising cellulose powder (p4 ln 30) and that the cellulose material facilitates the formation of the sheet (p4 ln 34-35) and as such reads on the cellulose film-forming agent. Deforel teaches that the cellulose material content would be between 30% and 60% on a dry weight basis. (p5 ln 13-14) This range overlaps the range of the instant claim, and therefore the instant claim is prima facie obvious. See MPEPE 2144.05.
Deforel further teaches that the sheet contains a binder (p8 ln 17) and one or more polyhydric alcohols. (p9 ln 22) and that the polyhydric alcohols are used as the aerosol former for the sheet.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Mironov and Rusico by using the aerosol generating sheet material for the individual substrates as taught by Deforel because Mironov, Rusico, and Deforel are directed to aerosol generating articles, Deforel teaches aerosol-generating articles according to the invention are advantageously not required to handle liquid formulations (p 1-2 ln 36-1) and sheets according to the invention and aerosol-generating rods according to the invention may advantageously have longer shelf lives than liquid formulations typical used in e-cigarettes. (p 2 ln 3-5), and this involves a simple substitution of one known element for another to obtain predictable results
Regarding claim 17, Mironov teaches that the aerosol generating device comprises a plurality of electric heaters (heating elements) and a controller that controls the electric current to each electric heaters. ([0081], Fig 3)
Regarding claim 18, Mironov teaches that the controller can be configured to activate the plurality of electric heaters in groups with each group being activated and deactivated sequentially. [0081] When the controller activates the electric heaters sequentially to heat discrete portions of the aerosol forming substrate. ([0083], Fig 4)
Mironov, as modified by Rusico in claim 16, teaches that the sequential heating of the heating elements would be controlled by the user inhalation. ([0032], [0069])
Regarding claim 19, Mironov does not teach that the device would have a drive assembly that would move the aerosol generating substrate relative to the heater.
Rusico teaches that the substrate may be movable relative to the housing during operation of the positioning mechanism. [0014] A person having ordinary skill would recognize that this design would allow the substrate to move relative to the housing and the moving heating element.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Mironov by allowing the substrate to move relative to the heating element as taught by Rusico because both Mironov and Rusico are directed to aerosol generating devices, Rusico teaches this allows new portions of the substrate to be heated without damaging the heating element or the substrate [0015], and this involves the use of known technique to improve similar devices in the same way.
Regarding claim 20, Mironov fails to teach a drive assembly that would move the heating assembly relative to the aerosol generating film.
Rusico teaches the microcontroller, attached to the heating element, checks the puff count of the device to ensure the substrate can be heated. If the substrate has been used up, the heating element is moved to a new position by the positioning mechanism (drive assembly) which can be controlled via automatic means. Once the heating element is move longitudinally along the substrate to a new position the device is ready to provide the next puff. [0069]
Regarding claim 21, Mironov does not teach that the heating element would move or that the movement would be driven by the user’s inhalation.
As discussed in claim 16, Mironov as modified by Rusico teaches that the heating element would be attached to a positioning mechanism which is also attached to a microcontroller that monitors the puff count. When the puff count for an area of the substrate is reached the heater is moved to another portion of the substrate to generate an aerosol for the user. [0069] The use of the puff count of the microcontroller to determine when the position of the heater on the substrate is considered to read on the limitation.
Regarding claim 22, a modified Mironov teaches that the aerosol generating article comprises a plurality of discrete aerosol forming substrates positioned on a base layer (support). [0077]
Regarding claims 23 and 24, Mironov, as modified by Rusico, teaches that the device operation comprises moving a plurality of heating elements, simultaneously or sequentially, to heat the same or different portions of the aerosol-forming substrate. [0032] The determination of the position of the heater may be done using a microcontroller. The microcontroller may be configured to activate the positioning mechanism following the supply of predetermined amount or duration of electrical power to the heating element.[0027] Rusico teaches the heater heats a new portion of the aerosol-forming substrate for each puff, to ensure that the desired amount and desired characteristics of aerosol are achieved. [0054]
Claim 32 is rejected under 35 U.S.C. 103 as being unpatentable over Mironov et al (US20170318862A1), Rusico, et al (US20140301721A1) and Deforel, et al (WO2018122095A1), as applied to claim 16, and further in view of John, et al (US 20180271153A1)
Regarding claim 32, Mironov and Rusico, modified by Deforel, teaches a sheet having an aerosol former (polyhydric alcohol) content of between about 5% and 35% but does not teach that the aerosol former content would be higher.
John, directed to the design of aerosol generating devices and materials, teaches that
an aerosol generating material can comprise components in the following ranges: glycerol 10-
60%; nicotine 0-4%, and tobacco extract 0-50%. ([0123]-[0129]) John teaches the use of
glycerol which is a well-known polyhydric alcohol that is used as an aerosol former as taught by
Deforel. [0034]
Therefore, before the effective filing date of the claimed invention, it would be obvious
for one having ordinary skill in the art to modify Mironov, Rusico, and Deforel by using a gel composition a polyhydric alcohol (aerosol former) amount as taught by John because Mironov, Rusico, Deforel, and John are directed to aerosol generating articles, John teaches that a greater quantity and concentration of an aerosol generating agent may be included in the material so that a greater quantity of aerosol and/or gas is generated on heating [0066], and this involves the use of known technique to improve similar products in the same way.
Claim 33 is rejected under 35 U.S.C. 103 as being unpatentable over Mironov et al (US20170318862A1), Rusico, et al (US20140301721A1) and Deforel, et al (WO2018122095A1), as applied to claim 16, and further in view of Lampe, et al (US20150230515A1).
Regarding claim 33, As discusses in claim 16, both Mironov and Deforel teach the use of cellulose materials in the formation of a tobacco sheet. Deforel further teaches that the cellulose material is used to facilitate the formation of the sheet.
However, Mironov and Deforel are silent with respect to the specific cellulose materials that could be used in the formation of a tobacco sheet.
Lampe, directed to the design of tobacco containing gel material, teaches that the film-forming polymers can be used and include methylcellulose, hydroxypropyl cellulose (HPC), hydroxypropyl methylcellulose (HPMC), hydroxyethyl cellulose, and carboxy methylcellulose. [0073] A person having ordinary skill would recognize that the film-forming polymers taught by Lampe are known cellulose ethers.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Mironov, Rusico, and Deforel by selecting one to the cellulose film forming agents as taught by Lampe because Mironov, Rusico, Deforel, and Lampe are directed to aerosol generating materials that contain tobacco, Lampe teaches the use of these can create a coating that prevents the hardening of the gel mixture in the presence of air [0012], and this involves the use of known technique to improve similar products in the same way
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 VIRGINIA R BIEGER whose telephone number is (703)756-1014. The examiner can normally be reached M-Th: 7:30-4:30.
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/V.R.B./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755