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
This office action is in response to Applicant’s amendment filed on 13 May 2026:
Claims 1-9, 11-16 and 19-20 are pending
Claim 1 is amended
Claims 10 and 17-18 are cancelled
Claim 20 is new
Response to Amendment
Applicant's amendments to the claims filed 13 May 2026 have been acknowledged.
Response to Arguments
Applicant’s arguments filed 13 May 2026, with respect to the rejection of Claim 1 under 35 U.S.C. 103 have been fully considered and are persuasive.
On Pages 5-7 of Applicant’s Remarks, Applicant has amended the claim to further recite that the chamber is tubular in shape and argues that neither Lancker nor Hsu teaches said limitation. Specifically, Lancker’s device is designed to use a planar shaped heating surface and not a tubular shaped chamber.
Examiner acknowledges that Lancker’s disclosure primarily discusses planar elements, wherein even if the elements were to be curved, Lancker primarily points to a mirrored structure that is not tubular in shape and therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Plojoux et al (Publication No. US20140305449A1).
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.
Claims 1-3, 8-16 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Plojoux et al (Publication No. US20140305449A1) in view of Hsu et al (Publication No. US20140314396A1).
Regarding Claim 1, Plojoux discloses an aerosol-generating device (100) ([0051], see Fig. 1), configured to heat a smokable material (Aerosol-forming substrate 2) to generate an aerosol for inhalation [0025, 0052], comprising:
a chamber (i.e., cavity), configured as a tubular shape to receive a smokable material (2) (Fig. 2; [0039. 0056]; chamber cavity is cylindrical in shape which is considered equivalent to a tubular shape); and
the chamber (i.e., cavity) having a first radial direction, and a second radial direction that is perpendicular to the first radial direction (see Figs. 2, 3B; [0056-0057]; chamber has a cylindrical shape wherein the first radial direction is the arcuate direction and the second radial direction is the longitudinal direction which is perpendicular to the arcuate direction); and
a first infrared emitter (External heater 24) and a second infrared emitter (External heater 26) that are arranged in the first radial (i.e., arcuate) direction of the chamber/cavity (see Fig. 3B; [0056-0057]), and configured to radiate infrared rays towards the chamber so as to heat the smokable material (2) ([0020]; heaters can be infrared heating elements; infrared rays radiating towards the chamber is implied since the smokable material is located between the emitter elements; thus, radiation must be directed towards the chamber to heat the article);
the first infrared emitter (24) and the second infrared emitter (26) extending at least partially in the second radial direction (see Fig. 3B), thereby defining the chamber between the first infrared emitter (24) and the second infrared emitter (26), such that the size of the chamber in the second radial direction is greater than that in the first radial direction (see Figs. 2, 3B; the chamber is cylindrically shaped and is shown to be much longer/bigger in the second radial/longitudinal direction than the first radial/arcuate direction);
wherein the first or second infrared emitter comprises:
a base ([0020-0022]; heating element substrate for applying a heating coating or deposition is considered equivalent to the base); and
an infrared emitting coating formed on a surface of the base ([0020-022]; coating technique can be applied to a heating substrate; heating element can be an infrared type which implies the coating would be an infrared emitting coating);
wherein the infrared emitting coating is capable of generating heat when electrified and radiating the infrared rays to heat the smoking material.
Lancker also discloses that the emitter (i.e., heating element) is preferably made from metals, ceramics, polymers, composite materials or combinations thereof ([0033]) . Lancker does not explicitly disclose the infrared emitting coating is capable of generating heat when electrified and radiating the infrared rays to heat the smoking material.
Regarding (I-III), Hsu, directed to an electrothermal element (1) (i.e., infrared emitter) which comprises a substrate base (100) made of ceramic and an electrothermal layer (200) (i.e., infrared emitting coat) that can produce heat and emit infrared radiation when electrically connected to electrodes (Fig. 5B; [0004]). The electrothermal layer (200) covers (i.e., coats) the substrate (100) ([0030]) and is formed on a surface of the base (see Fig. 5B).
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to modify the first or second infrared emitting heating element disclosed by Plojoux to comprise a ceramic substrate with an infrared emitting electrothermal layer coating as disclosed by Hsu, as both are directed to a heating element component, where this involves modifying one known infrared heating element design disclosed by Plojoux with another infrared heating element design disclosed by Hsu, to predictably result in an infrared emitter/heating element capable of generating heat and emitting infrared radiation to heat a smoking material.
Regarding Claim 2, Plojoux further discloses the first infrared emitter (24) and the second infrared emitter (26) are separated from each other (see Fig. 3B; the first heating element is arranged separately from the second heating element).
Regarding Claim 3, Plojoux further discloses the first infrared emitter (22) and the second infrared emitter (24) are spaced with certain distance, to form an airflow channel (i.e., air gap) for external air to enter the chamber (see Fig. 3B; [0015]; air gap implies that air can enter the chamber via the gap).
Regarding Claim 8, Plojoux further discloses the first infrared emitter (24) and/or the second infrared emitter (26) are/is configured as the shape of a sheet extending in the second radial direction (see Figs. 3B, 5; heating elements illustrated as curved planar sheets extending in a second radial/longitudinal direction).
Regarding Claim 9, Plojoux further discloses the first infrared emitter (24) and/or the second infrared emitter (26) are/is configured as the shape of a curve bending outwards in the first radial direction of the chamber (see Figs. 3B, 5).
Regarding Claim 11, Plojoux further discloses the first infrared emitter (24) is configured to be able to move in the first radial direction relative to the second infrared emitter (26), to change the size of the chamber/cavity in the first radial direction ([0017]; the heater is attached to a movable sleeve to aid insertion of the smokable article). Plojoux does not disclose the first infrared emitter (24) being movable relative to the second infrared emitter (26).
However, Plojoux, directed to an aerosol device, discloses a first and second heating element (see Fig. 3A; [0033]; elements 22 and 24), wherein a first section can be configured movable with respect to at least a second section ([0026]; indicates that the first element can be movable relative to a second element). This allows heating different sections of the substrate via motion of the heating element [0027].
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to modify the emitters disclosed by Plojoux such that the first emitter is movable relative to the second emitter as disclosed by Lancker, as both are directed to an aerosol device with infrared heating elements, where Lancker teaches the advantage of having a movable heating element relative to another element to allow heating different sections of the substrate via motion of the heating element [0027].
Regarding Claim 12, Plojoux further discloses the first infrared emitter (24) is configured to be able to move in the first radial direction relative to the second infrared emitter (26), to change the size of the chamber/cavity in the first radial direction ([0017]; the heater is attached to a movable sleeve to aid insertion of the smokable article). Plojoux does not disclose the first infrared emitter (24) being movable relative to the second infrared emitter (26).
However, Plojoux, directed to an aerosol device, discloses a first and second heating element (see Fig. 3A; [0033]; elements 22 and 24), wherein a first section can be configured movable with respect to at least a second section ([0026]; indicates that the first element can be movable relative to a second element). This allows heating different sections of the substrate via motion of the heating element [0027].
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to modify the emitters disclosed by Plojoux such that the first emitter is movable relative to the second emitter as disclosed by Lancker, as both are directed to an aerosol device with infrared heating elements, where Lancker teaches the advantage of having a movable heating element relative to another element to allow heating different sections of the substrate via motion of the heating element [0027].
Regarding Claim 13, Plojoux further discloses the first infrared emitter (24) and/or the second infrared emitter (26) are/is configured as the shape of a sheet extending in the second radial direction (see Figs. 3B, 5; heating elements illustrated as curved planar sheets extending in a second radial/longitudinal direction).
Regarding Claim 14, Plojoux further discloses the first infrared emitter (24) and/or the second infrared emitter (26) are/is configured as the shape of a sheet extending in the second radial direction (see Figs. 3B, 5; heating elements illustrated as curved planar sheets extending in a second radial/longitudinal direction).
Regarding Claim 15, Plojoux further discloses the first infrared emitter (24) and/or the second infrared emitter (26) are/is configured as the shape of a curve bending outwards in the first radial direction of the chamber (see Figs. 3B, 5).
Regarding Claim 16, Plojoux further discloses the first infrared emitter (24) and/or the second infrared emitter (26) are/is configured as the shape of a curve bending outwards in the first radial direction of the chamber (see Figs. 3B, 5).
Regarding Claim 19, Plojoux further discloses the first infrared emitter (24) and the second infrared emitter (26) comprise a shape that are mirroring each other (see Figs. 3B, 5).
Regarding Claim 20, the first infrared emitter (24) and the second infrared emitter (26) bend towards opposite directions, such that an oval-liked chamber is formed therebetween (see Figs. 3B).
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Plojoux et al (Publication No. US20140305449A1) in view of Hsu et al (Publication No. US20140314396A1) as applied to Claim 1 above, and further in view of Lancker et al (Publication No. US20210251289A1).
Regarding Claim 4, Plojoux further discloses the first infrared emitter (24) is configured to be able to move in the first radial direction relative to the second infrared emitter (26), to change the size of the chamber/cavity in the first radial direction ([0017]; the heater is attached to a movable sleeve to aid insertion of the smokable article). Plojoux does not disclose the first infrared emitter (24) being movable relative to the second infrared emitter (26).
However, Plojoux, directed to an aerosol device, discloses a first and second heating element (see Fig. 3A; [0033]; elements 22 and 24), wherein a first section can be configured movable with respect to at least a second section ([0026]; indicates that the first element can be movable relative to a second element). This allows heating different sections of the substrate via motion of the heating element [0027].
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to modify the emitters disclosed by Plojoux such that the first emitter is movable relative to the second emitter as disclosed by Lancker, as both are directed to an aerosol device with infrared heating elements, where Lancker teaches the advantage of having a movable heating element relative to another element to allow heating different sections of the substrate via motion of the heating element [0027].
Regarding Claim 5, Modified Plojoux further discloses the first infrared emitter (22) has a first position (see Fig. 4A) and a second position (see Fig. 4B) opposite to the second infrared emitter (24), and is able to move between the first position and the second position in the first radial direction relative to the second infrared emitter (see Claim 4 rejection above for modifying Plojoux’s emitters to be movable as disclosed in Lancker; Lancker, [0026]: a first heating section of the heating element may be configured movable with respect to at least a second heating section of the heating element);
Modified Plojoux does not explicitly state that the size of the chamber/cavity in the first radial direction when the first infrared emitter is at the first position is less than the size of the chamber in the first radial direction when the first infrared emitter is at the second position.
However, it should be noted that Lancker discloses that the heating elements may be spaced apart during insertion of the article, thereby causing an increase in the size of the heating chamber between the first and second positions [0055]. Plojoux has a similar gap between the heating elements (see Fig. 3B) and has been modified to also have the same relative movement between said heating elements (see Claim 4 rejection above).
Thus, one ordinarily skilled in the art would readily recognize that since Modified Plojoux would also be capable of an increase in the size of the heating chamber between the first and second positions as a result of having the spacing between heating elements and the movement relative to each other.
Claims 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Plojoux et al (Publication No. US20140305449A1) in view of Hsu et al (Publication No. US20140314396A1) and Lancker et al (Publication No. US20210251289A1) as applied to Claim 5 above, and further in view of Ferrie et al (Publication No. US20220095692A1).
Regarding Claim 6, Modified Lancker does not disclose the device further comprising a retaining mechanism, which is configured to stably retain the first infrared emitter at the first position and/or the second position.
However, Ferrie, directed to an aerosol-generating device configured to heat an aerosol-forming article ([0059]), teaches a locking mechanism (227-5) for the heater (204-5) configured to removably retain the heater ([1968]); the locking mechanism may include spring-loaded or slidable retaining elements ([1975]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to further modify Lancker by utilizing a retaining mechanism to secure a heating element as taught by Ferrie because both modified Lancker and Ferrie are directed to an aerosol-generating device configured to heat an aerosol-forming article. Ferrie teaches an alternative retaining mechanism that is displaceable ([1975]), and this merely involves use of a known spring-based retaining mechanism to improve similar heating assemblies in the same way (see MPEP 2143 I(C)).
Regarding Claim 7, Modified Lancker further discloses that the retaining mechanism comprises a biasing element (i.e., slidable retaining elements), which is configured to bias the first infrared emitter towards the second position (Ferrie; [1975]: the slidable retaining elements are displaceable, allowing the heater to move/change position). It would have been obvious to one of ordinary skill in the art before to further modify Lanker to provide a biasing element to lock the emitters in place.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Isobe et al (Publication No. US3413441A) – Infrared radiation heating device designed to be a hollow cylindrical structure, wherein the hollow structure is adapted to heat within its hollow interior via long wavelength infrared radiation rays.
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 Vu P Pham whose telephone number is (703)756-4515. The examiner can normally be reached M-Th (7:30AM-4:00PM EST).
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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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/V.P./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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