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 final rejection. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9/19/2025 has been entered.
Response to Amendment
Claims 1, 8 and 10-11 are amended. Claims 1-11 are presently examined.
Specification
The use of the terms Bluetooth [0067], WIFI [0067, which are trade names or marks used in commerce, has been noted in this application. The terms should be accompanied by the generic terminology; furthermore the terms should be capitalized wherever they appear or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the terms.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claims 3 and 6 are objected to because of the following informalities: The claims do not conclude with a period. Appropriate correction is required.
Claims 2-9 are objected to because of the following informalities: The claims begin with the indefinite article “a” rather than the definite article “the”. Appropriate correction is required.
Claim Rejections - 35 USC § 102
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 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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3-4, 6-7 and 10-11 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Liu (US 11,523,634).
Regarding claims 1, 3 and 10-11, Liu discloses an ultrasonic atomizing device (abstract), which is considered to meet the claim limitation of a smoking substitute apparatus. The device has a bottom end defined by a bottom seat (figure 6, reference numeral 31), which is considered to meet the claim limitation of a base portion, connected with an atomizer outer pipe (column 6, lines 10-32, figure 6, reference numeral 11). The atomizer outer pipe directly connects to upper (figure 6, reference numeral 18) and lower end covers (column 6, lines 10-32, figure 6, reference numeral 19), which together with the outer pipe are considered to define one or more walls. The outer pipe connects to a suction nozzle (column 6, lines 10-32, figure 6, reference numeral 15), which is considered to meet the claim limitation of a mouthpiece. The outer pipe, upper and lower end covers, bottom end, and suction nozzle together are considered to define a housing. The side wall of the mouthpiece has an air inlet hole that is located at a longitudinal distance from the base portion (column 5, lines 55-67, column 6, lines 1-9, figure 6, reference numeral 16), which is considered to meet the claim limitation of an air inlet. The upper end of the suction nozzle forms an outlet (figure 6), which is considered to meet the claim limitation of an outlet. A tobacco tar bin is arranged between the inner side wall of the atomizer outer pipe and an outer side wall of a second connecting seat (column 6, lines 10-32, figure 6, reference numeral 30), which is considered to meet the claim limitation of a tank for housing an aerosol precursor. The lower portion of the tar bin is defined by an atomizing core outer sleeve having a horizontal portion (column 5, lines 11-21, figure 6, reference numeral 5), which is considered to meet the claim limitation of a transverse chamber wall. A tobacco tar guide cotton has a cup-shaped structure (figure 6, reference numeral 1), which is considered to meet the claim limitation of a wick, with ends that extend through the opening in the lower wall that defines the chamber to reach tobacco tar inlet holes that communicate tobacco tar to the tobacco tar guide cotton (column 5, lines 11-21, figure 6, reference numeral 7), which is considered to meet the claim limitation of ends of the wick extending through the transverse chamber wall to be in contact with aerosol precursor. The bottom portion of the tobacco tar guide cotton is in contact with an atomizing piece (column 5, lines 40-49, figure 6, reference numeral 2) that generates heat to form smoke (column 2, lines 58-64), which is considered to meet the claim limitation of a heating element. The center of the tobacco tar guide cotton is in contact with the atomizing piece and extends transversely (column 2, lines 58-64), which is considered to meet the claim limitation of a heatable portion of the wick. The lower portion of the tobacco tar guide cotton forms the bottom of a cylinder (figure 3), which is considered to meet the claim limitation of cylindrical. The components of the airflow pathway are shown in the annotated version of figure 6 below:
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Regarding claim 4, the annotated version of figure 6 above shows that the first and third portions of the airflow path are perpendicular to the second portion of the airflow path.
Regarding claim 6, the cup shape of the tobacco tar guide cotton of Liu is considered to be U-shaped.
Regarding claim 7, Liu discloses that the portion of the tobacco tar guide cotton that is in contact with the atomizing piece is shorter in length than the airflow path in the lower portion of the cup shaped portion of the tobacco tar guide cotton (figure 6).
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 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.
Claims 2 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US 11,523,634).
Regarding claim 2, Liu discloses all the claim limitations as set forth above. Liu does not explicitly disclose the distance between the air inlet and the lower end cover being at least 8 mm.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the distance between the air inlet and the lower end cover be at least 8 mm. A change in size is generally recognized as being within the level of one of ordinary skill in the art absent evidence that the change in size results in a difference in performance. See MPEP § 2144.04 IV A.
Regarding claim 9, Liu discloses all the claim limitations as set forth above. Liu additionally discloses that the center portion of the tobacco tar guide cotton extends in a width direction and that the device has a vertical length, a width, and a depth that is perpendicular to the width (figure 6). Liu does not explicitly disclose the depth being less than both the width and length.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the device have the claimed relative size. A change in size is generally recognized as being within the level of one of ordinary skill in the art absent evidence that the change in size results in a difference in performance. See MPEP § 2144.04 IV A.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Liu (US 11,523,634) in view of Florack (US 11,533,952).
Regarding claim 5, Liu discloses all the claim limitations as set forth above. Liu does not explicitly disclose a bypass air inlet.
Florack teaches an aerosol generating system having a mixing chamber extending between a cartridge and a mouthpiece (abstract). A ventilation air inlet provides fluid communication between an exterior and the mixing chamber (column 1, lines 46-67, column 2, lines 1-14) so that the mainstream airflow can be mixed to provide a desired concentration of aerosol to the user (column 1, lines 26-35).
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine mouthpiece of Liu with the ventilation air inlet of Florack. One would have been motivated to do so since Florack teaches that ventilation air inlets provide a desired concentration of aerosol to a user.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Liu (US 11,523,634) in view of Li (US 11,285,278).
Regarding claim 8, Liu discloses al the claim limitations as set forth above. Liu does not explicitly disclose the tobacco tar bin being located between the first and third airflow portions.
Li teaches an atomizer that has an airflow channel on its outer surface that reduces the external temperature to avoid a user’s hands being burned (column 3, lines 25-37).
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to locate the first airflow portion of Liu being located outside of the tobacco tar bin of Liu. One would have been motivated to do so since Li teaches that positioning an airflow channel on the outside of an atomizer reduces the temperature to avoid a user’s hands being burned.
Response to Arguments
Regarding the rejections under 35 USC 103, applicant’s arguments are moot since they do not apply to the references relied upon in the instant Office action.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUSSELL E SPARKS whose telephone number is (571)270-1426. The examiner can normally be reached Monday-Friday, 9:00 am-5 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at 571-270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUSSELL E SPARKS/ Primary Examiner, Art Unit 1755