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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after allowance or after an Office action under Ex Parte Quayle, 25 USPQ 74, 453 O.G. 213 (Comm'r Pat. 1935). Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant's submission filed on 02/09/2026 has been entered.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 02/09/2026 and 02/25/2026 were filed. The submissions are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
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 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) 17-19, 21-23, 26, and 32-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fagrell et al (US 20110139773) in view of Hashimoto et al (JP 11123758 A).
Recording claim 17, Fagrell discloses a microwave heating unit, comprising:
(ii) a microwave radiation unit comprising a microwave radiation source (Fig. 2C #206 microwave source) or radiation signal source, the microwave radiation unit being configured to supply the microwave radiation field and/or an underlying microwave radiation signal to the holding and exposing space (Space between the Fig. 2C #211 load holder);
and (iii) an impedance matching unit (Fig. 2C #207 tuning device) configured to achieve impedance matching between the holding and exposing space and the underlying microwave radiation signal and/or the microwave radiation field, the impedance matching unit (Fig. 2C #207 tuning device) comprising electrodes (Fig. 2C #s 202 and 203 first and second plates) configured for generating the microwave radiation field upon receipt of the underlying microwave radiation signal, wherein the microwave heating unit is configured for heating an aerosol-forming sample due to microwave absorption by a material of the sample thereby releasing by or from the sample upon heating the sample at least one aerosol, in or as an inhalation, vaporizer, and/or smoking product or device and/or for pulmonary drug delivery (Examiner notes that the phrase “the microwave heating unit is configured for heating an aerosol-forming sample…” is a statement of intended use and the structure of the device as taught by Fagrell can perform the intended function. It has been held that “[A]pparatus claims cover what a device is, not what a device does. Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original); MPEP 2114. A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987); MPEP 2114(II). A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art.).
However, Fagrell does not disclose (i) a sample holding and exposing unit configured to receive and hold a sample in a holding and exposing space and to expose the sample to a microwave radiation field within the holding and exposing space; wherein the sample holding and exposing unit comprises a sample holder defining and forming the holding and exposing space within an interior, with first and second holding portions optionally separated by a slit structure, and wherein the first and the second holding portions simultaneously serve as first and second electrodes, respectively.
Nonetheless, Hashimoto in the same field of endeavor being microwave heating devices teaches (i) a sample holding and exposing unit (Fig. 5) configured to receive and hold a sample in a holding and exposing space (Space between Fig. 5 #s 3a-3b semi cylindrical holders) and to expose the sample to a microwave radiation field within the holding and exposing space (Space between Fig. 5 #s 3a-3b semi cylindrical holders);
wherein the sample holding and exposing unit (Fig. 5) comprises a sample holder (Fig. 5 #s 1-2 upper and lower electrodes and 3a-3b semi cylindrical holders) defining and forming the holding and exposing space (Space between Fig. 5 #s 3a-3b semi cylindrical holders) within an interior, with first and second holding portions (Fig. 5 3a-3b semi cylindrical holders) optionally separated by a slit structure (A slit is present between the semi cylindrical holders), and wherein the first and the second holding portions (Fig. 5 #s 1-2 upper and lower electrodes and 3a-3b semi cylindrical holders)simultaneously serve as first and second electrodes (Fig. 5 #s 1-2 upper and lower electrodes), respectively.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the microwave heating unit of Fagrell by incorporating the sample holding and exposing unit as taught by Hashimoto for the benefit of easily holding or removing the sample to be heated from the holder efficiently.
Regarding claim 18, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 17), and Fagrell teaches further comprising a free running oscillator configured to generate and supply the microwave radiation field and/or the underlying microwave radiation signal ([0060] lines 9-12 ---" A microwave source 206 with a frequency of 2.45 GHz has a penetration depth suitable for many applications including laboratory reactions.”; The microwave source is an oscillator because it operates at a frequency which denotes oscillation.).
Regarding claim 19, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 17), and Fagrell teaches wherein the impedance matching unit (Fig. 2C #207 tuning device) is tunable in its matching properties concerning impedance, frequency, the aerosol-forming sample, or a combination thereof ([0076] lines 5-9 ---"For example, by tuning the Resistive/Inductive/Capacitive (RLC) characteristics of the tuning device 207, the overall impedance matching of applicator 210 can be adjusted, thereby affecting the efficiency of the heating system.”).
Regarding claim 21, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 17), and Fagrell teaches further comprises a connecting configuration with a connector (Fig. 2C #208 transmission line) and/or a waveguide configured to provide a connection to the microwave radiation sources (Fig. 2C #206 microwave source), and wherein the microwave radiation source (Fig. 2C #206 microwave source) or radiation signal source is configured upon its energization to generate and/or release the underlying microwave radiation field or the underlying signal (If a prior art apparatus teaches all of the structural limitations of an apparatus claim, then, a recitation with respect to the manner in which the claimed apparatus is intended to be employed does not differentiate the claimed apparatus from the prior art apparatus. See MPEP 2114.).
Regarding claim 22, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 21), and Fagrell teaches further comprising a power source unit (A power source is implied by the operating nature of the Fig. 2C #206 microwave source) configured to energize the underlying microwave radiation unit.
Regarding claim 23, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 17), and Fagrell teaches wherein the microwave radiation unit further comprises a transistor amplifier, and/or wherein the impedance matching unit further comprises a microwave feedback port (Claim 17 ---" A microwave heating system in accordance with claim 16 further comprising a monitoring device providing a feedback signal to the tuning device.”; The monitoring device providing a feedback signal implies that the tuning device has a feedback port in order to receive the feedback signal.) and/or a microwave signal feedback port connected to an input of the transistor amplifier suitable to meet an underlying oscillation condition.
Regarding claim 26, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 17), and Fagrell in view of Hashimoto teaches wherein the microwave heating unit is further configured as a drug delivery product and/or device, aninhalation product or device, smoking product or device, a mobile product or device, and/or a portable product or device (Examiner notes that the phrase “the microwave heating unit is further configured as” is a statement of intended use and the structure of the device as taught by Fagrell in view of Hashimoto can perform the intended function. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art.).
Regarding claim 32, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 17), and Fagrell teaches further comprising an impedance matching network comprising the impedance matching unit (Fig. 2C #207 tuning device).
Regarding claim 33, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 17), and Hashimoto l teaches wherein the interior of the holding and exposing space (Space between Fig. 5 #s 3a-3b semi cylindrical holders forms a cavity) is a cavity.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the microwave heating unit of Fagrell in view of Hashimoto by incorporating the cavity as taught by Hashimoto for the benefit of containing the sample to be heated.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fagrell et al (US 20110139773) in view of Hashimoto et al (JP 11123758 A) as applied to claim 17, further in view of Furukawa et al (US 20120218799).
Regarding claim 20, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 17), and Fagrell teaches wherein the impedance matching unit further comprises: the electrodes (Fig. 2C #s 202 and 203 first and second plates) configured for generating the microwave radiation field (Fig. 2B #213 microwave energy) upon receipt of the underlying microwave radiation signal, wherein the electrodes (Fig. 2C #s 202 and 203 first and second plates) geometrically fit to the aerosol-forming sample, holding and exposing space, and/or a cavity of the holding and exposing space (If a prior art apparatus teaches all of the structural limitations of an apparatus claim, then, a recitation with respect to the manner in which the claimed apparatus is intended to be employed does not differentiate the claimed apparatus from the prior art apparatus. See MPEP 2114.; Applicant has not claimed any specific shape for the sample.);
However, Fagrell in view of Hashimoto does not teach an output comprising waveguide structures, transmission lines and/or stubs; 1/8 λ to 1/4 λ wave guide matching elements; and/or a dielectric material portion.
Nonetheless, Furukawa in the same field of endeavor being microwave heating devices teaches an output comprising waveguide structures (Fig. 3 #81 waveguide), transmission lines and/or stubs;
1/8 λ to 1/4 λ wave guide matching elements ([0077] lines 5-9 ---" However, in the first embodiment, the intervals of the antenna probes 82a arranged in the lengthwise direction of the waveguide 81 are set to .lamda.g/4, where .lamda.g is the wavelength of the reflected microwaves RW in the waveguide 81, as shown in FIG. 3.”); and/or a dielectric material portion.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the microwave heating unit of Fagrell in view of Hashimoto by incorporating the waveguide structures and wave guide matching elements as taught by Furukawa for the benefit of efficiently obtaining the electric power of the reflected microwaves. (Furukawa [0072])
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fagrell et al (US 20110139773) in view of Hashimoto et al (JP 11123758 A) as applied to claim 17, further in view of Qiu et al (US 20180317288).
Regarding claim 25, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 17), but does not teach wherein the microwave radiation unit further comprises a transistor amplifier.
Nonetheless, Qiu teaches wherein the microwave radiation unit further comprises a transistor amplifier (Fig. 1 #104 transistor device).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the microwave heating unit of Fagrell in view of Hashimoto by incorporating the transistor amplifier as taught by Qiu for the benefit of amplifying the input signal into the impedance matching circuit.
Claim(s) 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fagrell et al (US 20110139773) in view of Hashimoto et al (JP 11123758 A) as applied to claim 18, further in view of Kaneko et al (US 20190057844).
Regarding claim 27, Fagrell in view of Hashimoto teaches the microwave heating unit as appears above (see the rejection of claim 17), but does not teach wherein the free running oscillator is connected to the sample holding and exposing unit or is a part thereof, realizes an IQ modulator and/or an IQ modulator functionality and comprises within a feedback loop a transistor amplifier, the impedance matching unit, and/or an impedance matching network, and an amplitude/phase correction device.
However, Kaneko in the same field of endeavor being microwave heating devices teaches wherein the free running oscillator (Fig. 2 #161 waveform generator) is connected to the sample holding and exposing unit (Fig. 2 #16j dummy load) or is a part thereof, realizes an IQ modulator and/or an IQ modulator functionality ([0126] lines 10-14 ---"The waveform generator 161 modulates a microwave from the PLL oscillator, and a microwave having a phase difference with the microwave from the PLL oscillator by 90° by using the IQ digital modulator.”) and comprises within a feedback loop a transistor amplifier (Fig. 2 #164-165 amplifier), the impedance matching unit (Fig. 2 #166 mode converter), and/or an impedance matching network, and an amplitude/phase correction device.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the microwave heating unit of Fagrell in view of Hashimoto by incorporating the oscillator and feedback loop as taught by Kaneko, since it has been held that if a prior art apparatus teaches all of the structural limitations of an apparatus claim, then, a recitation with respect to the manner in which the claimed apparatus is intended to be employed does not differentiate the claimed apparatus from the prior art apparatus. See MPEP 2114.
Claim(s) 28-31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hale et al (US 20030005925) in view of Fagrell et al (US 20110139773) and Hashimoto et al (JP 11123758 A).
Regarding claim 28, Hale discloses a microwave and/or RF heating method for heating an aerosol-forming sample, the method comprising:
heating the aerosol-forming sample with a microwave heating unit, the heating comprising microwave absorption by a material of the aerosol-forming sample thereby releasing, by or from the aerosol-forming sample upon the heating of the aerosol-forming sample, at least one aerosol comprising a phyto-active substance and/or a pharmaceutical active ingredient ([0089] ---" The heating of the rizatriptan or zolmitriptan compositions is performed using any suitable method. Examples of methods by which heat can be generated include the following: passage of current through an electrical resistance element; absorption of electromagnetic radiation, such as microwave or laser light; and, exothermic chemical reactions, such as exothermic solvation, hydration of pyrophoric materials and oxidation of combustible materials.”).
However, Hale does not disclose heating the aerosol-forming sample with the microwave heating unit of claim 17.
Nonetheless, Fagrell in view of Hashimoto teaches heating the aerosol-forming sample with the microwave heating unit of claim 17 (See the rejection of claim 17).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Hale by incorporating the heating by the microwave heating unit of claim 17 as taught by Fagrell in view of Hashimoto, since it has been held that if a prior art apparatus teaches all of the structural limitations of an apparatus claim, then, a recitation with respect to the manner in which the claimed apparatus is intended to be employed does not differentiate the claimed apparatus from the prior art apparatus. See MPEP 2114.
Regarding claim 29, Hale in view of Fagrell in view of Hashimoto teaches the method as appears above (see the rejection of claim 28), and Fagrell teaches further comprising: measuring and/or approximating a temperature of the aerosol-forming sample and using a value of which for controlling power supplied for energizing a microwave generation and/or releasing process ([0076] lines 12-16 ---" By monitoring, for example, the reflected power or the temperature of the load and using that as a feedback signal to the tuning device, the applicator can be tuned to optimize the heating efficiency of the system.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Hale in view of Fagrell in view of Hashimoto by incorporating the measuring of a temperature of the load as taught by Fagrell for the benefit of maintaining an aerosol forming temperature.
Regarding claim 30, Hale in view of Fagrell in view of Hashimoto teaches the method as appears above (see the rejection of claim 28), and Fagrell teaches wherein an operation frequency is in a range of from 1 MHz to 15 GHz ([0078] lines 15-17 ---" For example, as mentioned above, a waveguide for 2.45 GHz microwaves may typically have dimensions of 43 mm.times.86 mm.”), and wherein an operation power in continuous mode is in a range from 0.1 mW to 50 Watt ([0086] lines 5-10 ---" For example, the output power might be from 1 milliwatts to 100 milliwatts, 100 milliwatts to 1 watt, 1 watt to 10 watts, or 10 watts to 100 watts or more depending on the size and configuration of the plates, the load to be heated, and the characteristics of the microwave source.”), or in a pulsed mode is in a range from about 0.1 mW to about 50 W, or is ramped up between a value of 0.1 W and a value of 30 W.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Hale in view of Fagrell in view of Hashimoto by incorporating the operating frequency and power as taught by Fagrell for the benefit of heating the sample at a temperature to produce an aerosol.
Regarding claim 31, Hale in view of Fagrell in view of Hashimoto teaches the method as appears above (see the rejection of claim 28), and Hale teaches wherein the aerosol-forming sample comprises a fluid material, a solid material, a tablet, a capsule, a cartridge, a shell vial, a pellet, a pharmaceutical excipient, or a combination thereof ([0086] ---" Pharmaceutically acceptable excipients may be volatile or nonvolatile. Volatile excipients, when heated, are concurrently volatilized, aerosolized and inhaled with rizatriptan or zolmitriptan. Classes of such excipients are known in the art and include, without limitation, gaseous, supercritical fluid, liquid and solid solvents. The following is a list of exemplary carriers within the classes: water; terpenes, such as menthol; alcohols, such as ethanol, propylene glycol, glycerol and other similar alcohols; dimethylformamide; dimethylacetamide; wax; supercritical carbon dioxide; dry ice; and mixtures thereof.”),
can be fitted according to a size of an underlying cavity, is or forms a vessel and/or has a housing ([0092] lines 5-6 ---" A rizatriptan or zolmitriptan composition is deposited on a surface 112 of heating module 106.”), and is contained in a vessel formed as a mouthpiece (Fig. 1 #110 mouthpiece) configured to allow inhalation of formed aerosol, as an integral piece, as a disposal and/or to comprise a filter ([0099] lines 1-8 ---"A variety of different traps are used for aerosol collection. The following list contains examples of such traps: filters; glass wool; impingers; solvent traps, such as dry ice-cooled ethanol, methanol, acetone and dichloromethane traps at various pH values; syringes that sample the aerosol; empty, low-pressure (e.g., vacuum) containers into which the aerosol is drawn; and, empty containers that fully surround and enclose the aerosol generating device.”), and/or a hollow tube.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOE E MILLS JR. whose telephone number is (571)272-8449. The examiner can normally be reached M-F 8-5.
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/JOE E MILLS JR./Examiner, Art Unit 3761
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