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 1-7 and 9 are pending and are subject to this Office Action. Claims 1 has been amended. Claim 8 has been canceled.
Response to Arguments
Applicant’s arguments, pages 5-9, filed 03/30/2026, with respect to claims 1-9 rejected under 35 USC § 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of previously applied prior art and newly found prior art.
Claim 1 has been amended to add the following limitations:
- and the smoking substitute apparatus further comprising one or more electrical contacts provided on the housing of the smoking substitute apparatus and electrically connected with the aerosol generator, the air inlet being provided by two air inlet regions, disposed on opposing sides of the one or more electrical contacts of the smoking substitute apparatus
- and the main body further comprising one or more electrical contacts provided on the main body which are configured to engage respectively with said one or more electrical contacts provided on the housing of the smoking substitute apparatus.
Applicant argues, page 6-7, neither Rogers nor Thorens disclose a separate but physically couplable main body and apparatus.
The Examiner respectfully disagrees. Rogers teaches the device is comprised of a reservoir/vaporizer section [0021] that is coupled to a power source that is in communication with the heating element in the vaporizer section. [0023] Rogers acknowledges that the power portion of the device is not shown in the schematics.
Applicant argues, page 7, a person having ordinary skill in the art would not be motivated to modify Rogers with the airflow channels of Thorens. Rogers includes a cylindrical case surrounding a tubular wick structure where Thorens directs the air flow from a location outside of a longitudinal axis of a housing towards the capillary wick and the heating coil which are aligned on the longitudinal axis.
Thorens is used to modify Rogers and teaches a tapered airflow pathway is a known shape for an airflow pathway. Thorens teaches that by tapering the airflow channel air can be directed in the device. Managing the air flow direction and the air flow speed, allows the particle size in the resulting aerosol to be controlled and preferably reduced compared with known devices. [0024]
Applicant argues, page 7-8, combined teachings of Rogers, Thorens, and Otiaba do not teach the newly amended limitation "the air inlet being provided by two air inlet regions, disposed on opposing sides of the one or more electrical contacts of the smoking substitute apparatus".
The Examiner acknowledges the previously applied prior art does not teach the newly amended limitation; however, newly found prior art is considered to teach the amended limitation.
Hatton, directed to the design of vaporizer devices, teaches air enters the vaporizer that is made up of a reusable component and a cartridge component. [0111-0112] The cartridge component has a tank hold a liquid vaporizable material therein, a heater, an air tube that extends to the mouthpiece. The cartridge has electrical contacts at the distal end of the cartridge to engage the electrical contacts of the reusable component of the device.[0014] Hatton teaches air is drawn in through air inlets in the reusable component and are proximate to the air inlet openings on the cartridge. [0115] The air inlets are disclosed to be on the opposite sides of the electrical contacts of the cartridge. (Fig 6A) Hatton teaches that this design allows the cartridge to be securely inserted into the reusable vaporizer device and, the electrical contacts separate from the air inlets, prevent or ameliorate the effects of leakage of oil from the cartridge. [0031-0032]
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 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.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Rogers, et al (US2019012498) and further in view of Thorens, et al (US20110094523A1) and Hatton (US20180077967A1).
Regarding claim 1, Rogers teaches a personal vaporizing device having an air inlet section defining a distal end, a reservoir/vaporization section, and a mouthpiece and cap. [0039] Rogers discloses these sections being discrete sections within the device. (see annotated figure 1)
Rogers teaches that the air inlet section has a case wall that is part of a housing and has an opening defining an inlet chamber. One or more air inlet ports are formed through the case wall to allow air to pass from the atmosphere into the inlet chamber. The air inlet passageway provides fluid communication between the inlet chamber and flows through an air conduit into the vaporization chamber and then travels out through the mouthpiece. [0041]
Rogers teaches that the vaporization section is configured to heat a liquid stored in a reservoir to generate a vaporized product. [0040] Rogers discloses that the vaporization component, including the wick and the heating element are located in the airflow pathway of the vaporization section. (Figure 4, annotated figure 1)
Rogers discloses a design for a personal vaporizer device where the plenum chamber is located upstream of the vaporizer section and where the two portions are coupled together. While Rogers does not explicitly teach that this design is configured to reduce the velocity of the airflow, Rodgers does teach that “the airflow rate through any personal vaporizer is a function of the pressure differential applied by the user and the draw impedance (pressure drop) within the device. Devices having low draw impedance will deliver a relatively high flow rate for a small user-applied pressure differential. Devices having high draw impedance will produce a lower airflow rate for the same user-applied pressure differential.” Rogers goes on to teach that the draw impedance of a vaporizer device is a function of the ports, flow passages, and the internal chambers of the device. [0028-0029] A person having ordinary skill in the art would recognize that the air inlet chamber would also reduce the velocity since the air flow would speed up as it entered the chamber through the air inlet through the smaller cross-sectional area of the inlet and then return to a normal pressure and reduced flow rate once inside the inlet chamber space once the air is inside the outer body. Additionally, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See MPEP § 2112.01, I.
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Annotated Figure 1.
Rogers does not teach that the airflow channel would have a tapered portion between the air inlet and the aerosol generator.
Thorens, directed to the design a smoking systems with liquid storage, teaches the use of tapered channels in the airflow between the inlet and the vaporizing portion of the device. Thorens teaches that the channels can taper inward to direct airflow generally in the direction of the longitudinal axis of the housing but diagonally towards the capillary wick and heating coil. [0083]
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Rogers by using a tapered channel as taught by Thorens because both Rogers and Thorens are directed to aerosol generating devices having a heater and a liquid source, Thorens teaches by tapering the airflow channel the air flow can be directed to the atomizing portion and wick, and this involves the use of known technique to improve similar devices in the same way.
Rogers teaches the vaporizer portion of the device can be coupled with a power source ([0023], [0042]) but is silent with respect to the electrical connection.
Hatton, directed to the design of vaporizer devices, teaches air enters the vaporizer that is made up of a reusable component and a cartridge component. [0111-0112] The cartridge component has a tank hold a liquid vaporizable material therein, a heater, an air tube that extends to the mouthpiece. The cartridge has electrical contacts at the distal end of the cartridge to engage the electrical contacts of the reusable component of the device.[0014] Hatton teaches air is drawn in through air inlets in the reusable component and are proximate to the air inlet openings on the cartridge. [0115] The air inlets are disclosed to be on the opposite sides of the electrical contacts of the cartridge. (Fig 6A)
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Rogers and Thorens by using an electrical connection between the cartridge and a reusable portion of the device as taught by Hatton because Rogers, Thorens, and Hatton are directed to the design of vaporizers, Hatton teaches this design allows the cartridge to be securely inserted into the reusable vaporizer device and, the electrical contacts separate from the air inlets, prevent or ameliorate the effects of leakage of oil from the cartridge. [0031-0032], and this involves the use of known technique to improve similar devices (methods, or products) in the same way.
Regarding claim 2, Rogers teaches that the air inlet section is comprised of an air inlet chamber. [0041] The air inlet chamber of Rogers is considered to read on the plenum chamber limitation.
Regarding claims 3 and 7, Rogers teaches the outer shell that surrounds the air intake section appear to illustrate that the portions of the outer housing shell have a cross-sectional area being at least 70% optionally at least 80%, optionally at least 90% of the cross sectional area of the main body. Therefore, while Rogers does not appear to explicitly disclose a ratio, it would be obvious to a person having ordinary skill in the art to reasonably approximate and conclude that the Rogers reasonably suggests a position along the longitudinal axis that would result in a ratio of at least about 70%, absent evidence to the contrary.
Regarding claim 4, while Rogers does not teach the specific length of the air inlet chamber, Rogers does teach that the airflow rate through the device is a function of the pressure differential through the device and the pressure drop in the device. Devices having low pressure drop will deliver a relatively high flow rate for a small user-applied pressure differential while devices having high pressure drop will produce a lower airflow rate for the same user-applied pressure differential. Rogers teaches that the pressure drop in the device is a function the ports, flow passages, and internal chambers of the device and that the airflow rate can be changed to maintain or establish an overall pressure drop for the device. [0028-0029]
Thus, it would have been obvious to one of ordinary skill in the art at the time the invention was made to optimize the size of the air inlet chamber since it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The burden is upon the Applicant to demonstrate that the claimed [parameter] is critical and has unexpected results. In the present invention, one would have been motivated to optimize the air inlet chamber motivated by the desire to generate a desired pressure drop across the device.
Regarding claims 5 and 6, Rodgers discloses that the plenum chamber extends in both a longitudinal direction and an axial direction (annotated figure 1 above) and that the air inlet ports are formed through the case wall allowing air to enter the chamber. Rogers teaches that the plenum chamber is spatially separated from the airflow channel through the device via the air conduit. [0041], (annotated figure 1)
Regarding claim 9, Hatton teaches that the electrical connection occurs on the bottom side wall of the cartridge/vaporizer portion of the smoking article.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Phillip 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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/V.R.B./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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