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 Arguments
Applicant’s arguments filed 02/04/2026 in the Pre-Appeal Brief Request for Review have been fully considered and are persuasive with respect to the prior rejection of claims 15-28. Accordingly, the rejection of claims 15-17, 19-21, and 25-28 under 35 U.S.C. § 102 over Fursa, and the rejection of claims 18 and 22-24 under 35 U.S.C. § 103 over Fursa in view of Plojoux, are withdrawn.
Applicant’s arguments regarding the rejection of claim 17 under 35 U.S.C. § 112(b) have also been fully considered and are persuasive. Accordingly, the rejection of claim 17 under 35 U.S.C. § 112(b) is withdrawn.
However, upon further consideration, new grounds of rejection are made below based on Plojoux (US 2015/0013696 A1) in view of Reevell (WO 2020/074602 A1).
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: The limitation “heating means” in claim 22 is interpreted under 35 U.S.C. § 112(f) because the claim uses the term “means” with functional language. The corresponding structure in the specification includes a heating element configured to heat the aerosol-generating article, and equivalents thereof. For purposes of the prior art rejection below, Plojoux teaches corresponding heating structure in the form of heating element 115/1005.
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.
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 § 103
Claims 15-28 are rejected under 35 U.S.C. § 103 as being unpatentable over Plojoux (US 2015/0013696 A1) in view of Reevell (WO 2020/074602 A1).
Regarding claim 15, Plojoux teaches:
an aerosol-generating device for heating an aerosol-forming substrate provided in a substantially cylindrical aerosol-generating article (electrically heated smoking system including extractor 101 receiving smoking article 201 having aerosol-forming substrate 203; Fig. 7B);
the aerosol-generating device comprising a longitudinally extending cavity configured to receive a distal portion of the aerosol-generating article (extractor 101 having inner wall 703 receiving the substrate-containing portion of smoking article 201; Fig. 7B);
the cavity having a longitudinal axis, a base, and side walls extending from the base (longitudinal cavity of extractor 101 having an inner end/base-side region and inner wall 703 extending from the inner end toward the article-receiving opening; Fig. 7B);
and having an opening at an end opposite to the base (open article-receiving end of extractor 101 through which smoking article 201 is received; Fig. 7B);
wherein internal surfaces of the side walls define a stabilising portion of the cavity (portion of inner wall 703 deflected by protuberances 701 to contact aerosol-forming substrate 203; Fig. 7B, ¶ [0111]);
and a heating portion of the cavity located between the stabilising portion and the base (portion of the cavity receiving aerosol-forming substrate 203 and heating element 115, located between the protuberance/contact region and the inner end/base-side region; Fig. 7B);
wherein the internal surfaces of the side walls of the cavity further define a locating portion disposed at a distal end of the cavity (inner end/base-side region of extractor 101 that positions the substrate-containing end of smoking article 201 relative to heating element 115; Fig. 7B);
the heating portion being disposed between the stabilising portion and the locating portion (substrate-receiving/heating region located between the protuberance/contact region and the inner end/base-side region; Fig. 7B); and
wherein, when the substantially cylindrical aerosol-generating article is fully inserted into the cavity, the substantially cylindrical aerosol-generating article contacts inner walls of both the stabilising portion and inner walls of the locating portion (smoking article 201 received in extractor 101 with protuberances 701 deflecting inner wall 703 inward to contact/compress aerosol-forming substrate 203 and the inner end/base-side region positioning the substrate-containing end relative to heating element 115; Fig. 7B, ¶ [0111]).
Plojoux further teaches the claimed air gap. As shown in Fig. 7B, smoking article 201 is received in extractor 101 with aerosol-forming substrate 203 positioned near heating element 115. In the heating region, inner wall 703 surrounds substrate 203 but is spaced radially outward from the outer cylindrical surface of substrate 203, except where protuberances 701 locally deflect the wall inward. That radial clearance extends circumferentially around the outer cylindrical surface of the substrate in the heating region and forms the claimed annular air gap (Fig. 7B).
Plojoux does not expressly teach the claimed diameter relationship in which the stabilising portion has a first diameter, the heating portion has a second diameter greater than the first diameter, and the locating portion has a third diameter substantially equal to the first diameter.
However, Plojoux teaches that, in the heating region, it is desirable to reduce contact between the extractor and the smoking article while maintaining extractor function. In particular, Plojoux teaches that windows 901 reduce surface contact between extractor 101 and smoking article 201, thereby reducing the thermal mass of extractor 101 (¶ [0119]). Plojoux also teaches that reduced surface contact reduces heat loss from aerosol-forming substrate 203 and improves heating efficiency (¶ [0119]). Plojoux further teaches that the size of windows 901 may be varied so long as extractor 101 maintains structural integrity (¶ [0120]).
Reevell is in the same field of endeavor because it teaches an aerosol generation device having a heating chamber for receiving a substrate carrier containing an aerosol substrate (Abstract). Reevell teaches engagement elements that reduce the cross-sectional area of the heating chamber. Specifically, Reevell teaches a plurality of engagement elements 140 extending from the inner surface of tubular wall 126 at different circumferential locations, thereby reducing the cross-sectional area of the heating chamber for at least a portion of its length (Abstract).
Reevell teaches that protrusions 140 hold the substrate carrier centrally in the heating chamber (p. 12, lines 27-35). Reevell teaches that a uniform gap is provided around the outside of the carrier when the carrier is centrally mounted in the heating chamber (p. 15, lines 16-33). Reevell further teaches that protrusions 140 define a restricted diameter smaller than the internal diameter of the heating chamber (p. 16, lines 27-33). Reevell also teaches that multiple sets of protrusions may be used at spaced longitudinal positions (p. 19, lines 30-35).
Therefore, it would have been obvious to modify Plojoux’s extractor in view of Reevell to include axially spaced inward engagement elements defining reduced effective diameters at the stabilising and locating portions, thereby arriving at the claimed stabilising portion having a first diameter, heating portion having a second diameter greater than the first diameter, and locating portion having a third diameter substantially equal to the first diameter. One would have been motivated to make the modification for the benefit of providing controlled reduced cross-sectional-area contact regions while holding the carrier centrally and maintaining a uniform gap around the outside of the carrier, as taught by Reevell (p. 12, lines 27-35; p. 15, lines 16-33).
Regarding claim 16, modified Plojoux teaches a heating portion having a larger diameter than the stabilising portion, as discussed above regarding claim 15. However, modified Plojoux does not expressly teach the claimed transverse cross-sectional area range.
Reevell teaches suitable relative dimensions for an article-receiving heating chamber having inward protrusions that define a restricted diameter. Reevell teaches that heating chamber 108 has an internal diameter of 7.6 mm (Reevell, p. 15, lines 16-33). Reevell further teaches that protrusions 140 define a restricted diameter between 6.0 mm and 6.8 mm (Reevell, p. 16, lines 27-33).
Because transverse cross-sectional area is proportional to diameter squared, Reevell’s 7.6 mm heating chamber diameter compared to the 6.0-6.8 mm restricted diameter defined by protrusions 140 provides a heating portion cross-sectional area of about 125% to 160% of the restricted stabilising portion cross-sectional area, which falls within the claimed range of 110% to 300%.
Therefore, it would have been obvious to apply Reevell’s relative dimensional relationship to modified Plojoux to arrive at the claimed cross-sectional area range. One would have been motivated to use Reevell’s relative dimensions because Reevell teaches that those dimensions are suitable for the same type of article-receiving heating chamber having inward protrusions that hold the substrate carrier centrally while maintaining a gap around the carrier (Reevell, p. 15, lines 16-33).
Regarding claim 17, modified Plojoux teaches wherein the annular air-gap forms a closed air pocket when the distal portion of the aerosol-generating article is inserted into the cavity.
As discussed above regarding claim 15, modified Plojoux teaches an annular air gap in the heating portion and axially spaced reduced-diameter contact regions at the stabilising and locating portions. When the aerosol-generating article is inserted into the cavity, the stabilising and locating portions contact the article at opposite ends of the heating portion, while the larger-diameter heating portion remains spaced from the article to form the annular air gap. Thus, the annular air gap is bounded at opposite axial ends by the stabilising and locating contact portions and forms a closed air pocket.
This understanding of the amended “closed air pocket” language is consistent with Applicant’s Figures 3 and 4, which show the air gap in the heating portion axially bounded by the closer-fitting stabilising and locating portions.
Regarding claim 18, modified Plojoux teaches wherein an air inlet is defined through the base (Plojoux, aperture 109 defined through the base/inner end of extractor 101; Fig. 7B).
Regarding claim 19, modified Plojoux teaches wherein the internal surfaces of the side walls of the cavity further define a tapered region in which a diameter of the cavity changes at a constant gradient between the second diameter and the third diameter (Plojoux, sloped/tapered inner wall transition between the wider heating-region portion of extractor 101 and the narrower base-side/locating portion; Fig. 7B).
Regarding claim 20, modified Plojoux teaches wherein a difference in diameter between the first diameter at the stabilising portion and the second diameter at the heating portion is a gap diameter, the gap diameter being between 0.5 mm and 5 mm.
As discussed above regarding claim 16, Reevell teaches that heating chamber 108 has an internal diameter of 7.6 mm (Reevell, p. 15, lines 16-33), and protrusions 140 define a restricted diameter between 6.0 mm and 6.8 mm (Reevell, p. 16, lines 27-33). The difference between the 7.6 mm heating chamber diameter and the 6.0-6.8 mm restricted diameter is 0.8 mm to 1.6 mm, which falls within the claimed gap diameter range of 0.5 mm to 5 mm.
Regarding claim 21, modified Plojoux teaches wherein the internal surface of the side walls of the cavity comprise one or more ribs extending longitudinally in the heating portion and extending radially from the internal surfaces of the side walls of the cavity (Plojoux, protuberances 701 causing inner wall 703 to deflect radially inward toward aerosol-forming substrate 203 in the heating region; Fig. 7B, ¶ [0111]).
Modified Plojoux does not expressly teach the one or more ribs having a radial dimension equal to the gap diameter. However, Plojoux teaches that protuberances 701 deflect inner wall 703 inward to compress aerosol-forming substrate 203 (Plojoux, ¶ [0111]), and Reevell teaches inward engagement elements/protrusions that define a restricted diameter smaller than the internal diameter of the heating chamber, as discussed above regarding claims 15 and 20. Therefore, it would have been obvious to size the inwardly extending ribs/protuberances in modified Plojoux so that the ribs extend across the gap and contact the aerosol-forming substrate, thereby providing a radial dimension equal to the gap diameter, for the benefit of providing the desired inward contact/compression of the aerosol-forming substrate taught by Plojoux (Plojoux, ¶ [0111]).
Regarding claim 22, modified Plojoux teaches a first body portion housing a power source, control electronics, and at least part of a heating means (Plojoux, first housing portion 1002 fixed relative to internal components including battery and heater 1005; ¶ [0123]).
Modified Plojoux further teaches a second body portion that is movable relative to the first body portion, wherein the cavity is defined in the second body portion (Plojoux, second housing portion 1001 forming extractor 1001, with sliding receptacle 1013 defining an elongated substantially tubular cavity for receiving smoking article 1111; ¶ [0124]; extractor 1001 coupled to device 1000 in first and second positions; ¶ [0125]).
Regarding claim 23, modified Plojoux teaches wherein the second body portion is movably coupled to the first body portion between a first position and a second position (Plojoux, extractor/second housing portion movable relative to the device between first and second positions; ¶¶ [0125]-[0126]).
Modified Plojoux further teaches the first position being an operating position defined by the heating means being engageable with the aerosol-generating article (Plojoux, in the first position, heater 1005 penetrates the cavity of the sliding receptacle and the smoking article is inserted such that the heater penetrates the aerosol-forming substrate; ¶ [0125]).
Modified Plojoux further teaches the second position being an extraction position defined by the aerosol-generating article being at least partially ejected from the cavity (Plojoux, extractor moved from the first position to the second position to move the aerosol-forming substrate away from the heater and allow the smoking article to be removed/extracted; ¶¶ [0127]-[0128]).
Regarding claim 24, modified Plojoux teaches wherein a heating element extends into the heating portion of the cavity (Plojoux, heating element 115 extending into aerosol-forming substrate 203 in the substrate-receiving/heating region of extractor 101; Fig. 7B).
Regarding claim 25, Plojoux teaches:
an aerosol-generating system (device 1000 having extractor 1001 for positioning or extracting smoking article 1111 received within device 1000; ¶ [0122]), comprising an aerosol-generating article (smoking article 1111; ¶ [0125]) and an aerosol-generating device configured to heat the aerosol-generating article (device 1000 having heater 1005 penetrating into the aerosol-forming substrate of smoking article 1111 in the operating position and being operated to heat the aerosol-forming substrate to generate aerosol; ¶ [0126]);
wherein the aerosol-generating device comprises a longitudinally extending cavity configured to receive a distal portion of the aerosol-generating article (extractor 101 having inner wall 703 receiving the substrate-containing portion of smoking article 201; Fig. 7B);
the cavity having a longitudinal axis and being defined by a base, side walls extending from the base, and an opening at an opposite end of the cavity to the base (longitudinal cavity of extractor 101 having an inner end/base-side region, inner wall 703 extending from the inner end, and an open article-receiving end; Fig. 7B);
wherein internal surfaces of the side walls define a stabilising portion of the cavity (portion of inner wall 703 deflected by protuberances 701 to contact aerosol-forming substrate 203; Fig. 7B, ¶ [0111]);
and a heating portion of the cavity located between the stabilising portion and the base (portion of the cavity receiving aerosol-forming substrate 203 and heating element 115, located between the protuberance/contact region and the inner end/base-side region; Fig. 7B);
wherein the internal surfaces of the side walls of the cavity further define a locating portion disposed at a distal end of the cavity (inner end/base-side region of extractor 101 that positions the substrate-containing end of smoking article 201 relative to heating element 115; Fig. 7B);
the heating portion being disposed between the stabilising portion and the locating portion (substrate-receiving/heating region located between the protuberance/contact region and the inner end/base-side region; Fig. 7B); and
wherein, when the substantially cylindrical aerosol-generating article is fully inserted into the cavity, the substantially cylindrical aerosol-generating article contacts inner walls of both the stabilising portion and inner walls of the locating portion (smoking article 201 received in extractor 101 with protuberances 701 deflecting inner wall 703 inward to contact/compress aerosol-forming substrate 203 and the inner end/base-side region positioning the substrate-containing end relative to heating element 115; Fig. 7B, ¶ [0111]).
Plojoux further teaches the claimed air gap. As shown in Fig. 7B, smoking article 201 is received in extractor 101 with aerosol-forming substrate 203 positioned near heating element 115. In the heating region, inner wall 703 surrounds substrate 203 but is spaced radially outward from the outer cylindrical surface of substrate 203, except where protuberances 701 locally deflect the wall inward. That radial clearance extends circumferentially around the outer cylindrical surface of the substrate in the heating region and forms the claimed annular air gap (Fig. 7B).
Plojoux does not expressly teach the claimed diameter relationship in which the stabilising portion has a first diameter, the heating portion has a second diameter greater than the first diameter, and the locating portion has a third diameter substantially equal to the first diameter.
For the same reasons discussed above regarding claim 15, it would have been obvious to modify Plojoux’s extractor in view of Reevell to include axially spaced inward engagement elements defining reduced effective diameters at the stabilising and locating portions, thereby arriving at the claimed first diameter, larger second diameter, substantially equal third diameter, and annular air gap. One would have been motivated to make the modification for the benefit of providing controlled reduced cross-sectional-area contact regions while holding the carrier centrally and maintaining a uniform gap around the outside of the carrier, as taught by Reevell (p. 12, lines 27-35; p. 15, lines 16-33).
Regarding claim 26, modified Plojoux teaches wherein the aerosol-generating article is a substantially cylindrical aerosol-generating article configured to be heated with the aerosol-generating device (Plojoux, elongate cylindrical smoking article 201 including aerosol-forming substrate 203 and filter plug 205, with aerosol-forming substrate 203 positioned to be heated by heating element 115; ¶ [0091]).
Modified Plojoux further teaches the aerosol-generating article having a longitudinal axis and an article diameter (Plojoux, smoking article having a total length of approximately 45 mm and an external diameter of approximately 7.2 mm; ¶ [0048]).
Modified Plojoux further teaches wherein the first diameter is substantially equal to the article diameter (Plojoux, smoking article having an external diameter of approximately 7.2 mm; ¶ [0048]; modified Plojoux having the reduced effective diameter at the stabilising portion selected to contact/hold the smoking article, as discussed above regarding claim 25).
Regarding claim 27, modified Plojoux teaches wherein the aerosol-generating article comprises a plurality of co-axially aligned components (Plojoux, aerosol-forming substrate 203 and filter plug 205 arranged sequentially and in coaxial alignment; ¶ [0091]), including an aerosol-forming substrate (Plojoux, aerosol-forming substrate 203; ¶ [0091]), assembled within a wrapper to form a substantially cylindrical article having a longitudinal axis and an article diameter (Plojoux, elongate cylindrical smoking article 201 overwrapped with outer paper wrapper 207; ¶ [0091]; smoking article having an external diameter of approximately 7.2 mm; ¶ [0048]), the aerosol-generating article having a proximal portion terminating in a proximal end (Plojoux, filter plug 205/mouth end portion of smoking article 201; Fig. 2A, ¶ [0091]) and a distal portion terminating in a distal end (Plojoux, aerosol-forming substrate 203/end portion inserted toward heating element 115; Fig. 2A, ¶ [0091]), and wherein the aerosol-forming substrate is located in the distal portion of the aerosol-generating article (Plojoux, aerosol-forming substrate 203 located in the inserted end portion of smoking article 201 opposite filter plug 205; Fig. 2A, ¶ [0091]).
Regarding claim 28, modified Plojoux teaches a heating portion having a larger diameter than the stabilising portion, as discussed above regarding claim 25. However, modified Plojoux does not expressly teach the claimed transverse cross-sectional area range.
Reevell teaches suitable relative dimensions for an article-receiving heating chamber having inward protrusions that define a restricted diameter. Reevell teaches that heating chamber 108 has an internal diameter of 7.6 mm (Reevell, p. 15, lines 16-33). Reevell teaches that protrusions 140 define a restricted diameter between 6.0 mm and 6.8 mm (Reevell, p. 16, lines 27-33).
Because transverse cross-sectional area is proportional to diameter squared, Reevell’s 7.6 mm heating chamber diameter compared to the 6.0-6.8 mm restricted diameter provides a heating portion cross-sectional area of about 125% to 160% of the stabilising portion cross-sectional area, which falls within the claimed range of 110% to 300%.
Therefore, it would have been obvious to apply Reevell’s relative dimensional relationship to modified Plojoux to arrive at the claimed cross-sectional area range. One would have been motivated to use Reevell’s relative dimensions because Reevell teaches that the protrusions hold the substrate carrier centrally while maintaining a gap around the outside of the carrier (Reevell, p. 15, lines 16-33).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER KESSIE whose telephone number is (571)272-7739. The examiner can normally be reached Monday - Thursday 7:00am - 5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H Wilson can be reached at (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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/JENNIFER A KESSIE/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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