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 1-4, 8-10, 14-15, 17-18, and 22-28 are pending and are subject to this Office Action.
Claims 1-4, 8-10, 14, and 26-28 have been withdrawn.
Claim 15 has been amended.
Claim 16 has been cancelled.
Response to Amendment
The Examiner acknowledges Applicant’s response filed on 8/4/2026 containing
amendments and remarks to the claims.
Response to Arguments
Applicant's arguments filed 8/04/2026 have been fully considered but they are not persuasive.
On pages 6-9 the Applicant argues the primary reference Dignum teaches a stepped curve to reach the operational temperature, with a characteristic plateau at Tpre, followed by a steep rise at t2 where the heater reaches its operating temperature of Taero. The Applicant argues that this is not a smooth heating profile as claimed.
The Examiner does not find this to be persuasive, as the Examiner does not agree with the Applicant’s interpretation of the claimed limitation “smooth heating curve”.
Under a broadest reasonable interpretation (BRI), words of the claim must be given their plain meaning, unless such meaning is inconsistent with the specification. The plain meaning of a term means the ordinary and customary meaning given to the term by those of ordinary skill in the art at the relevant time. The best source for determining the meaning of a claim term is the specification - the greatest clarity is obtained when the specification serves as a glossary for the claim terms. See MPEP § 2111.01.I. The Applicant’s specification does not provide a definition for a smooth heating curve nor does the specification even mention the word “smooth”; nevertheless the Examiner does agree that the drawings do show a heating curve that is smooth.
The Applicant remarks on page 8 that Fig. 5 of the instant application shows smoothed curve B, which also transitions from a rise in temperature, to a plateau at T1, and then transitions to a decrease in temperature. However, the Applicant then argues that as Dignum describes a rapid increase in temperature and then a rapid decrease in temperature (see page 9 of the Applicant’s arguments), that the heating curve of Dignum is not a smooth heating curve. Both heating curves increase in temperature, transition to a plateau, and then transition from the plateau to a decrease in temperature. One of ordinary skill in the art would understand that a heating curve may still have these transitions and plateau, and yet still be a smooth heating curve. It is not a question of how quickly that transition occurs, for example Dignum describing the curve having a rapid increase and a rapid decrease in temperature, but rather what that transition point exactly is to determine if a heating curve is smooth, or not smooth.
One of ordinary skill in the art would understand that a smooth curve has no corners, cusps, or breaks, as evidenced by Mathwords - Smooth Curve, reproduced below.
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The heating curve in Dignum does not have a sharp corner or cusp as it transitions from Tamb1 to Tpre, and from Tpre to Taero; the transition is curved (emphasis added). See fig. 4 of Dignum reproduced below.
Fig. 4 of Dignum
As the transition is a continuous curve, without any sharp corners or cusps, the heating curve meets the definition of what one of ordinary skill in the art would consider to be a “smooth curve” as claimed. Therefore, the prior art meets the amended claim limitation.
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.
Claim(s) 15, 17-18 and 22-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Project Paradise LTD (WO2019/141577, cited in IDS dated 5/26/2022, citations will refer to US2021/0052829), herein referred to as Dignum, in view of Raichman (US2019/0208823) and Sur (US2019/0014819).
Regarding claim 15, Dignum teaches:
An aerosol provision device for generating aerosol from an aerosol generating material (electronic cigarette, [0008]), the device comprising:
A heating element (heating coil 5), control circuitry (switch 9, figure 1, [0009]) and an indicator (indicator such as an illuminated light emitting diode (LED) may notify a user, [0085]).
Wherein the control circuitry is configured to: supply power to the heating element to heat the aerosol generating material to an operational temperature (in response to an activation, a predetermined amount of power is delivered to the heater to increase the temperature to a second temperature or aerosolization temperature, [0085]) along a smooth heating curve (fig. 4, as the heating curve does not have any sharp corners, cusps, or breaks).
Applying a set amount of power for a set amount of time will always cause the temperature of heating element to rise by a correspondingly set amount…once the heater element has been raised to the correct (known) pre-heat temperature, this ensures that each subsequent heating and cooling steps (i.e. from the first temperature to the aerosolization temperature and back again), are similarly standardized, and very accurately controllable ([0028]).
As such, Dignum teaches applying a set amount of power for a set amount of time (i.e. a first predetermined time period) to heat the heating element from the first temperature (i.e. pre-heat temperature) to the second temperature (i.e. aerosolization temperature). This reads on wherein the operational temperature of the heating element is set based on the length of the first predetermined time period.
If the user inhales, responsive to the user stopping inhaling, reducing the supply of power to the heating element ([0086]: as a result of the user’s inhalation ceasing the power provided to the heater is significantly reduced such that the temperature rapidly decreases).
Dignum does not appear to explicitly disclose (I) after the first predetermined time period, cause the indicator to provide a signal to a user to signify that the user may begin inhaling on the device and (II) responsive to the end of a second predetermined time period, if the user has not inhaled during the second predetermined time period, reducing the supply of power to the heating element.
In regard to (I), Raichman, directed to a smoking device, teaches:
An indication (such as an indicator light, a vibration, and/or an audio signal (e.g., a beep)) may be generated to indicate to the user to start inhalation when the target temperature for the second heating stage has been reached ([0205]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the indicator of Dignum to generate an indication on the device when the aerosolization temperature has been reached as taught by Raichman, because both Dignum and Raichman are directed to vaporization devices, Raichman teaches this indicates to a user when to start inhaling on the device, and this merely involves applying a known technique to a known device ready for improvement to yield predictable results.
In regard to (II), Sur, directed to a smoking article, teaches:
The aerosol delivery device may include a sleep, standby or low-power mode function whereby power delivery may be automatically cut off after a defined period of non-use ([0055]). The defined period defines a second predetermined time period and to cut off power delivery after this period of non-use defines if the user has not inhaled during the second predetermined time period, reducing the supply of power to the 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 the aerosol provision device of Dignum to automatically cut off the power delivery after a defined period of non-use as taught by Sur, because both Dignum and Sur are directed to vaporization devices, Sur teaches this is a sleep, standby, or low-power function, and this merely involves applying a known technique to a known device ready for improvement to yield predictable results.
Regarding claim 17, Dignum does not appear to explicitly disclose wherein the operational temperature, Top, of the heating element is determined as follows:
Top = A - (B x tdelay),
where A and B are constants, and tdelay is the first predetermined time period.
However, Dignum further teaches that applying a set amount of power for a set amount of time will always cause the temperature of heating element to rise by a correspondingly set amount ([0028]), and as such teaches that the operational temperature is determined from the first predetermined time period. Dignum further teaches a typical heating profile of a heating coil as a graph of temperature T (y-axis) versus time t (x-axis), (figure 2, [0011]). As the line between when the heating coil is activated (t1) to when the heating coil reached the operational temperature (T0) is approximately linear, it would be obvious to one of ordinary skill in the art that the operation temperature is determined by the equation A – (B x tdelay ).
Regarding claim 18, Dignum further teaches that a heating rate that occurs over a period of 1-5 seconds or less for aerosolization ([0029], i.e. second temperature) and that the second temperature (i.e. operational temperature) may be in the range of 120° C. to 180° C ([0033]). As such, Dignum teaches wherein when the first predetermined time period is greater than zero seconds and less than 8 seconds (1-5 seconds), the control circuitry is configured to cause heating of the heating element to an operational temperature of between 120°C to 180°C.
Dignum does not appear to explicitly disclose when the first predetermined time period is greater than zero seconds and less than 8 seconds, the control circuitry is configured to cause heating of the heating element to an operational temperature of between 200°C to 350°C. However, Dignum further teaches the second temperature, and therefore the amount of power that needs to be delivered, may be selected based on the choice of aerosolizable composition and its constituent ingredients and the temperature at which these vaporize ([0033]).
Therefore it is evident that the device of Dignum would be capable of heating to a slightly higher temperature if the predetermined time is slightly longer, and thus one of ordinary skill could configure the device of Dignum to have a first predetermined time period and operational temperature that falls within the claimed range. Furthermore, it is noted that the Courts have held that the manner of operating an apparatus does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim, and that apparatus claims must be structurally distinguishable from the prior art in terms of structure, not function. See MPEP §§ 2114 and 2173.05(g). The burden of proof then shifts to the applicant to provide objective evidence to the contrary. In this instance, the prior art combination is considered to teach a structurally equivalent device as claimed and it would be obvious for one of ordinary skill to configure the device to operate at similar conditions as claimed based on the aerosolizable composition.
Regarding claim 22, Dignum further teaches the control circuitry causes heating of the heating element to a second temperature ([0031], the second temperature is the operational temperature) and may be in the range 120° C to 180° C ([0033]), which falls within the claimed range of no greater than 350° C.
Regarding claim 23, Dignum further teaches:
Wherein the control circuitry is configured to supply power to the heating element prior to supplying power to the heating element for the first predetermined time period ([0085], preconditioning temperature).
Wherein the power supplied prior to the first predetermined time period is set at a level such that the heating element is heated to a temperature below the operational temperature (As a predetermined amount of power is delivered to the heater to increase the temperature to a second temperature or aerosolization temperature ([0085]), it is evident that the preconditioning temperature is lower than the operational temperature).
Regarding claim 24, modified Dignum does not appear to disclose the length of the second predetermined time period.
However, Sur further teaches a long puff safety timer that causes the control component to terminate the puff automatically after four seconds ([0054]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the second predetermined time period of Dignum to be four seconds as taught by Sur, because both Dignum and Sur are directed to vaporization devices, Sur teaches a known time period to terminate power, and this merely involves discovery of the optimum or workable ranges by routine experimentation where the general conditions of a claim are disclosed in the prior art.
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Project Paradise LTD (WO2019/141577, cited in IDS dated 5/26/2022, citations will refer to US2021/0052829), herein referred to as Dignum, in view of Raichman (US2019/0208823) and Sur (US2019/0014819) as applied to claim 15 above, and further in view of Nakano (WO2019/186666, references will refer to the English version US2021/0007408, both cited in IDS dated 5/26/2022).
Regarding claim 25, modified Dignum teaches an indicator such as an illuminated light emitting diode (LED) may notify a user ([0085]).
Dignum does not appear to explicitly disclose wherein the signal is perceptible to the user by inhalation.
Nakano, directed to an aerosol generation device, teaches:
An aerosol generation device that switches between a preparation state and a use state ([0086]), in the preparation state the user is not allowed to inhale aerosols with the aerosol generation device ([0087]). The load may not generate aerosols from the aerosol generation article in the preparation state ([0089]), and may generate aerosol from the aerosol generation article in the state ([0092]). As such, the device indicates to the user that the device is in the use state when aerosol is generated, and therefore reads on the claim limitation a signal that is perceptible to the user by inhalation.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to configure modified Dignum to generate an aerosol once the device is in the use state as taught by Nakano, because both Dignum and Nakano are directed to aerosol generation devices with indication means, and this merely involves incorporating a known way to indicate to a user that a device is ready for inhalation to a similar aerosol generation device to yield predicable results.
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 Nicole A Szumigalski whose telephone number is (703)756-1212. The examiner can normally be reached Monday - Friday: 8:00 - 4:30 EST.
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/N.A.S./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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