DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
Status of the Claims
Claims 1-20 are pending. Claims 1, 5, and 7 have been amended.
Response to Amendments
The Examiner acknowledges Applicant's response filed on 11/11/2025 containing amendments and remarks to the claims.
Response to Arguments
Applicant's arguments filed 11/11/2025 have been fully considered but they are not persuasive.
Applicant’s arguments concern the consumable as it appeared in the prior Office action not interacting with the aerosol generation device of Hepworth in the manner required by the newly added limitations. However, the consumable is not a positively recited element of the aerosol generation device, and “[a] claim is only limited by positively recited elements” (MPEP § 2115). Specifically, the consumable is introduced in claim 1 by the statement: “a chamber adapted to receive a consumable”. As such, the chamber does not need to include any consumable but merely be capable of receiving such a consumable. This makes the ”consumable” a material worked upon by the aerosol generation device. Because the aerosol generation device of Hepworth is capable of operating with a different hypothetical consumable in a manner described by the newly added limitations to “flick the flange part of the consumable to dislodge and partially eject the consumable form the chamber as the consumable disconnects from the cover”, Hepworth still anticipates the claim, as discussed in the rejections below (see Fig. 3c and Fig. 12a of Hepworth below, modified by the examiner to show such hypothetical consumables).
Applicant further argues that “retaining element 1264 does not form any part of the second portion 1202b”, and “[t]herefore, Hepworth fails to disclose a cover having ‘one or more dislodging elements’”. This argument is not persuasive as retaining element 1264 is not required to be a part of the second portion 1202b. Instead, the alternate rejection of claim 1 stated that the cover is the “combination” of components 1202b and 1264, and this cover meets all the claimed limitations for the cover, as discussed in the rejection below.
Applicant further argues that “[t]here is no disclosure of the retaining element 1264, which the Examiner asserts as an engagement member, will ‘catch on the flange part of the consumable’ . . . or that the retaining element 1264 is configured to ‘flick the flange of the consumable’ . . . as is recited in the claim.” This argument is not persuasive as a reference is not required to explicitly set forth a disclosure (MPEP § 2112(III)). As discussed in the rejection below, the aerosol generation device of Hepworth is capable of interacting with a consumable as claimed and thus has all of the features of claim 1, as discussed in the rejections below.
Claim Rejections - 35 USC § 102
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-8, 12-13, and 16-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hepworth et al. (US 2019/0254346 A1).
Regarding claim 1, Hepworth discloses an aerosol generation device (“device 300”, Figs. 3a-3f, ¶ 0094) comprising:
a chamber (“receiving region 340”, Fig. 3d, ¶ 0096) adapted to receive a consumable (“flavor element 324”, Fig. 3d, ¶ 0096);
a housing (“second portion 302b”, Fig. 3d, ¶ 0095) containing the chamber and comprising an opening (“open end 334”, Fig. 3a, ¶ 0097) through which the consumable can be removed from the chamber (Fig. 3d, ¶ 0097); and
a cover (“first portion 302a” comprising “resilient members 338” each with a “lip portion 336”, Fig. 3d, ¶ 0096, 0098) configured to move between an open position (“open configuration”, Fig. 3d, ¶ 0097) in which the opening of the housing is exposed and a closed position (“closed configuration”, Fig. 3a, ¶ 0096) in which the opening of the housing is closed;
wherein the aerosol generation device is adapted to generate an inhalable vapor (“vapor or aerosol . . . for inhalation by a user” in “device 100”, which corresponds to “device 300”, from “element 124”, which corresponds to “flavor element 324”, ¶ 0068, 0080) from the consumable, and
wherein the cover comprises one or more dislodging elements (“resilient members 338”, Fig. 3d, ¶ 0096) and at least one of the one or more dislodging elements includes an engagement member (“lip portion 336”, Fig. 3d, ¶ 0096, 0098) configured to move substantially perpendicular to a direction of motion of the cover as the cover moves from the closed position to the open position (as seen in Figs. 3a-3c, the cover moves relative to the housing in the vertical direction (Z) and the engagement member moves substantially perpendicular to that vertical direction as shown in Fig. 3c).
With regard to the consumable having a flange part, as the consumable itself is not a positively recited element but instead a material worked upon by the aerosol generation device, Hepworth still anticipates aerosol generation device as long as the aerosol generation device of Hepworth could operate with such a consumable (MPEP § 2115). As seen in Figure 3c of Hepworth below, modified by the examiner, the aerosol generation device of Hepworth could operate with such a consumable having a flange, and the engagement member is configured to catch on the flange part of the consumable. Further, as seen in Figure 3c of Hepworth below, modified by the examiner, as the cover moves from the closed position to the open position, the cover could flick the flange part of the consumable to dislodge and partially eject the consumable from the chamber as the consumable disconnects from the cover.
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Figure 3c of Hepworth, Modified by Examiner
Alternatively regarding claim 1, Hepworth discloses an aerosol generation device (“device 1200”, Figs. 12a-12b, ¶ 0148) comprising:
a chamber (“channel 1232”, Figs. 12a-12b, ¶ 0150) adapted to receive a consumable (“flavor element 1224”, Fig. 12a, ¶ 0150);
a housing (“first portion 1202a”, Fig. 12a, ¶ 0150) containing the chamber and comprising an opening (“opening 1244”, Fig. 12a, ¶ 0150) through which the consumable can be removed from the chamber (Fig. 12a, ¶ 0150); and
a cover (combination of “second portion 1202b” and “retaining element 1264”, Figs. 12a-12b, ¶ 0148, 0152) configured to move between an open position (“open configuration”, Fig. 12a, ¶ 0148) in which the opening of the housing is exposed and a closed position (“closed configuration”, Fig. 12b, ¶ 0148) in which the opening of the housing is closed;
wherein the aerosol generation device is adapted to generate an inhalable vapor (“vapor or aerosol . . . for inhalation by a user” in “device 100”, which corresponds to “device 1200”, from “element 124”, which corresponds to “flavor element 1224”, ¶ 0068, 0080) from the consumable, and
wherein the cover comprises one or more dislodging elements (outer wall and “shelf 1290” of “second portion 1202b”, Figs. 12a-12b, ¶ 0151, being a first dislodging element and “retaining element 1264”, Figs. 12a-12b, ¶ 0152, being a second dislodging element) and at least one of the one or more dislodging elements includes an engagement member (“retaining element 1264”, Fig. 12a, ¶ 0098) configured to move substantially perpendicular to a direction of motion of the cover as the cover moves from the closed position to the open position (the engagement member moves vertically, “The latch 1264 is operable by a user (not shown), against the spring 1266, to release the latch 1264 from the notch 1291”, ¶ 0152, and the cover has a direction of motion substantially in the horizontal direction during the initial part of the opening motion).
With regard to the consumable having a flange part, as the consumable itself is not a positively recited element but instead a material worked upon by the aerosol generation device, Hepworth still anticipates aerosol generation device as long as the aerosol generation device of Hepworth could operate with such a consumable (MPEP § 2115). As seen in Figure 12a of Hepworth below, modified by the examiner, the aerosol generation device of Hepworth could operate with such a consumable having a flange, and the engagement member is configured to catch on the flange part of the consumable (the examiner notes that Applicant has not claimed that this particular dislodging element is adapted to engage with the flange part of the consumable when the consumable is inside the chamber, so as long as any engagement with the consumable is possible, the claim limitation is satisfied; as seen in Fig. 12a below, modified by the examiner, the consumable can be placed against the dislodging element such that the dislodging element engages with the flange part of the consumable). Further, as seen in Figure 12a of Hepworth below, modified by the examiner, as the cover moves from the closed position to the open position, the cover could flick the flange part of the consumable to dislodge and partially eject the consumable from the chamber as the consumable disconnects from the cover.
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Figure 12a of Hepworth, Modified by Examiner
Regarding claim 2, Hepworth discloses an aerosol generation device according to claim 1, as stated above. Hepworth further discloses wherein when the cover moves from the closed position to the open position an attachment is weakened between the chamber and the consumable (Fig. 3c, ¶ 0097), wherein the attachment comprises friction between the consumable and the chamber (“resilient members 338 thereby grip around the flavor element 324”, ¶ 0097, gripping is interpreted to involve friction between the consumable and the chamber).
Regarding claim 3, Hepworth discloses an aerosol generation device according to claim 1, as stated above. Hepworth further discloses wherein the aerosol generation device is configured such that a new consumable can be inserted through the opening when the cover is in the open position (Fig. 3d, ¶ 0097, and the aerosol generation device is configured such that a user may operate the aerosol generation device to generate and inhale the inhalable vapor from the consumable when the cover is in the closed position (Fig. 3a, ¶ 0097).
Regarding claim 4, Hepworth discloses an aerosol generation device according to claim 1, as stated above. Hepworth further discloses wherein the one or more dislodging elements comprise two or more dislodging elements (“plurality of resilient members 338”, Fig. 3d, ¶ 0096).
Regarding claim 5, Hepworth discloses an aerosol generation device according to claim 1, as stated above. Hepworth discloses wherein the cover comprises two or more dislodging elements (“resilient members 338”, Fig. 3d, ¶ 0096) and each of the two or more dislodging elements having engagement members (“resilient members 338”, Fig. 3d, ¶ 0096) that are configured to catch on the flange part of the consumable (see Fig. 3c of Hepworth above, modified by the examiner).
Alternatively regarding claim 5, Hepworth discloses an aerosol generation device according to claim 1, as stated in the alternate rejection of claim 1 above. Hepworth discloses wherein the cover comprises two or more dislodging elements (outer wall and “shelf 1290” of “second portion 1202b”, Figs. 12a-12b, ¶ 0151, being a first dislodging element, and “retaining element 1264”, Figs. 12a-12b, ¶ 0152, being a second dislodging element) and each of the two or more dislodging elements having engagement members (outer wall and “shelf 1290” of “second portion 1202b”, Figs. 12a-12b, ¶ 0151, being the engagement member of the first dislodging element, and “retaining element 1264”, Figs. 12a-12b, ¶ 0152, being the engagement member of the second dislodging element) that are configured to catch on the flange part of the consumable (see Fig. 12a of Hepworth above, modified by the examiner).
Regarding claim 6, Hepworth discloses an aerosol generation device according to claim 5, as stated above. Hepworth further teaches wherein each of the two or more dislodging elements is a snap-fit connector (Fig. 3c, ¶ 0097).
Regarding claim 7, Hepworth discloses an aerosol generation device according to claim 6, as stated above. Hepworth further teaches wherein each the two or more dislodging elements are configured to form a snap-fit connection with the flange part of the consumable (Fig. 3c).
Regarding claim 8, Hepworth discloses an aerosol generation device according to claim 7, as stated above. Hepworth further teaches wherein at least one of the engagement members is a resilient member (“lip portion 336” is part of “resilient members 338”, Fig. 3c, ¶ 0098).
Regarding claim 12, Hepworth discloses an aerosol generation device according to claim 1, as stated above in the alternate rejection of claim 1. Hepworth further discloses wherein the cover is attached to the housing when the cover is in the open position (Fig. 12a).
Regarding claim 13, Hepworth discloses an aerosol generation device according to claim 12, as stated above. Hepworth further discloses wherein the cover is attached to the housing by a hinge (“the second portion 1202b is pivotally mounted 1268 to the first portion 1202a”, ¶ 0149).
Regarding claim 16, Hepworth discloses an aerosol generation device according to claim 13, as stated above. Hepworth further discloses wherein a first dislodging element (outer wall of “second portion 1202b”, Figs. 12a-12b, ¶ 0151) of the one or more dislodging elements is arranged such that, when the first dislodging element dislodges the consumable, the consumable is located between the first dislodging element and the hinge (Fig. 12a).
Regarding claim 17, Hepworth discloses an aerosol generation device according to claim 13, as stated above. Hepworth further discloses wherein the aerosol generation device is elongate along a longitudinal direction (“longitudinal axis P-P”, Fig. 12a, ¶ 0149), and wherein the hinge is oriented perpendicular to the longitudinal direction (“pivoting of the second portion 1202a relative to the first portion 1202a, about an axis 1268 substantially perpendicular to the longitudinal axis P-P”, Fig. 12a, ¶ 0149).
Regarding claim 18, Hepworth discloses an aerosol generation device according to claim 1, as stated above. Hepworth further discloses wherein the cover comprises a mouthpiece (“first portion 302a” is part of “mouth-end section 302”, ¶ 0095) and a flow channel (flow channel through “flavor element 324” in “receiving region 340”, Fig. 3d, ¶ 0096) through which the inhalable vapor can flow.
Regarding claim 19, Hepworth discloses an aerosol generation device according to claim 1, as stated in the alternative rejection of claim 1 above. Hepworth further discloses wherein the housing comprises an abutting surface (surface at interface of “first portion 1202a” and “second portion 1202b”, Fig. 12b) against which the cover can abut, the abutting surface comprising the opening (Figs. 12a-12b), and wherein the chamber is recessed within the housing relative to the abutting surface (Figs. 12a-12b).
Regarding claim 20, Hepworth discloses an aerosol generation device according to claim 19, as stated above. Hepworth further discloses wherein the one or more dislodging elements are arranged to extend through the opening when the cover is in the closed position (outer wall and “shelf 1290” of “second portion 1202b” extend through “opening 1244”, Fig. 12b).
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.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Hepworth et al. (US 2019/0254346 A1) as applied to the alternate rejection of claim 5 above, and further in view of Jain et al. (US 2019/0216129 A1).
Regarding claim 9, Hepworth discloses an aerosol generation device according to claim 5, as stated in the alternate rejection of claim 5 above. However, Hepworth does not explicitly disclose wherein the cover comprises a resilient seal arranged such that, when the cover is in the closed position, the resilient seal contacts the flange part of the consumable.
Jain, in the same field of endeavor, teaches a cover (“cover 102”, Fig. 12, ¶ 0087) with a flange (“flange 105”, Fig. 12, ¶ 0087) in contact with a flange part of a consumable (“cartomizer 30”, Fig. 12, ¶ 0087, with the flange part of the consumable being the part of the consumable in contact with the flange of the cover) for an aerosol generation device (“e-cigarette 10”, ¶ 0040-0041). Jain also teaches that the cover comprises a resilient seal (“the whole cover 102 may be made from a resilient material (rubber, foam, flexible plastics or similar) providing some elastic deformation allowing the cover 102 to be forced into the aperture 100 under compression”, ¶ 0087) arranged such that, when the cover is in a closed position (Fig. 12), the resilient seal contacts the flange part of the consumable (Fig. 12). Jain teaches that there is a benefit of this cover configuration in that it provides a tight seal (¶ 0087). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the cover taught by Hepworth to make it a resilient seal as taught by Jain in order to achieve this benefit. In the device of the combination, the cover comprising a resilient seal is arranged such that, when the cover is in the closed position, the resilient seal contacts the flange part of the consumable.
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Hepworth et al. (US 2019/0254346 A1) in view of Jain et al. (US 2019/0216129 A1) as applied to claim 9 above, and further in view of Adelson (US 2017/0304567 A1).
Regarding claim 10, Hepworth in view of Jain teaches an aerosol generation device according to claim 9, as stated above. Jain also teaches wherein the resilient seal is arranged to bias the cover away from a housing (Jain teaches that the seal/cover is made of a resilient material that elastically deforms under compression when the cover is closed against the housing formed by “partition 103”, ¶ 0087; therefore, due to this resiliency and compression the seal in the device of the combination would bias the cover away from the housing).
However, Hepworth does not disclose wherein the aerosol generation device comprises a sensor arranged to detect when the cover is pressed against the housing.
Adelson, in the same field of endeavor, teaches an aerosol generation device (“device 100”, ¶ 0043) that comprises a cover (“cover 16a”, ¶ 0046) and a housing (“housing 16”, ¶ 0046), with a sensor (“cover sensor”, ¶ 0046) arranged to detect when the cover is pressed against the housing (“the cover 16a comprises a cover sensor (not shown) to determine whether the cover 16a is properly closed”, ¶ 0046). Adelson also teaches that the operation of the device, including control of sensors and heater, is controlled by control circuitry (“control electronics”, ¶ 0050). Adelson also teaches a benefit of including the sensor and control circuitry in that they can be used to ensure that the device’s heater only activates when the cover is securely fastened (¶ 0046). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the device taught by Hepworth in view of Jain to further include a sensor arranged to detect when the cover is pressed against the housing and corresponding control circuitry as taught by Adelson in order to achieve this benefit.
Regarding claim 11, Hepworth in view of Jain and Adelson teaches an aerosol generation device according to claim 10, as stated above. Adelson also teaches the device further comprising control circuitry (“control electronics”, ¶ 0050) configured to control the aerosol generation device to start generation of the inhalable vapor when the sensor detects that the cover is pressed against the housing (“Using the cover sensor, the heater 5 can be configured to only activate when the cover 16a is securely fastened.”, ¶ 0046, “The heater 5 . . . can be configured to increase the temperature of the vaporizing chamber 4 to vaporize at least a portion of the material present . . . to form a vapor containing the substance for inhalation by the user.”, ¶ 0045; as the device taught by Hepworth also generates inhalable vapor by heating as described in Hepworth ¶ 0072, the device of the combination would be configured to control the aerosol generation device to start generation of the inhalable vapor when the sensor detects that the cover is pressed against the housing).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Hepworth et al. (US 2019/0254346 A1) as applied to claim 13 above, and further in view of Mead et al. (US 2019/0335811 A1).
Regarding claim 14, Hepworth discloses an aerosol generation device according to claim 13, as stated above. However, Hepworth does not explicitly disclose wherein the hinge comprises a detent axle configured such that the cover is stable at each of the open position and the closed position.
Mead, in the same field of endeavor, teaches an aerosol generation device (“vaping device 10”, Fig. 1, ¶ 0018) with a cover (“flip lid 14”, Fig. 1, ¶ 0019) attached to a housing (“main body 12”, Fig. 1, ¶ 0019) by a hinge (“spring hinge”, ¶ 0019), wherein the hinge comprises a detent axle (“spring hinge, such as a spring-cam-lever mechanism, or the like”, ¶ 0019) configured such that the cover is stable at each of an open position and a closed position (“the spring hinge tends to hold the flip lid 14 in place while in the closed position with no external force applied, and also tends to hold the flip lid 14 in place while in the open position with no external force applied”, ¶ 0019). One of ordinary skill in the art would have understood that the ability to keep the cover stable at each of the open and closed positions as taught by Mead (¶ 0019) is a benefit. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the hinge taught by Hepworth to comprise a detent axle configured such that the cover is stable at each of the open position and the closed position as taught by Mead in order to achieve this benefit.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Hepworth et al. (US 2019/0254346 A1) as applied to claim 13 above, and further in view of Conner et al. (US 2021/0015172 A1).
Regarding claim 15, Hepworth discloses an aerosol generation device according to claim 13, as stated above. However, Hepworth does not disclose wherein the hinge comprises a torsion spring, wherein the cover or the housing includes a magnet, wherein the torsion spring is configured to bias the cover towards the open position, and wherein the magnet is configured to hold the cover in the closed position.
Connor, in the same field of endeavor, teaches an aerosol generation device (“aerosol delivery device 100”, Fig. 2, ¶ 0036) with a cover (“second body portion 204”, Fig. 2, ¶ 0037) attached to a housing (“first body portion 202”, Fig. 2, ¶ 0037) by a hinge (“hinge feature 220”, Fig. 2, ¶ 0040), wherein the hinge comprises a torsion spring (“spring hinge”, ¶ 0040), wherein the cover or the housing includes a magnet (“one or both of the first body portion or the second body portion may include one or more magnets”, ¶ 0042), wherein the torsion spring is configured to bias the cover towards the open position (“one or more biasing features (such as, for example, one or more springs or other mechanical features) may bias the first and second body portions in one or both of the open position or use position”, ¶ 0042), and wherein the magnet is configured to hold the cover in the closed position (“one or both of the first body portion or the second body portion may include one or more magnets (or may be made of the magnetic material) configured to bias the first and second body portions in one or both of the open position or the use position”, ¶ 0042, where the “use position” is the closed position, Fig. 1, ¶ 0112). One of ordinary skill in the art would have understood that the ability to keep the cover stable at each of the open and closed positions as taught by Connor (¶ 0042) is a benefit. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the hinge taught by Hepworth to comprise a torsion spring configured to bias the cover towards the open position as taught by Connor and to have modified the cover or housing taught by Hepworth to include a magnet configured to hold the cover in the closed position as taught by Connor in order to achieve this benefit.
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 COURTNEY G CULBERT whose telephone number is (571)270-0874. The examiner can normally be reached Monday-Friday 9am-4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H Wilson can be reached at (571)270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/C.G.C./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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