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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12-9-2025 has been entered.
Response to Amendment
This office action is in response to the Applicants’ arguments/remarks filed 11-18-2025.
Claims 1, 3-8, 10-11, 13-18 are currently examined.
Claims 1 is amended.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 11 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding Claim 11, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For the purposes of compact prosecution, the limitations following the phrase “such as” are interpreted as not being required by the claim. (e.g., the claim only requires one opening is provided to the shaped cartridge for filling of materials.)
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, 3-10, 13, 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over Batista (WO2017207416A1).
Regarding Claim 1, Batista teaches an aerosol-generating article in form of a shaped cartridge (see Fig 2) comprising
a foamed aerosol-generating material (page 19, lines 32-33; aerosol forming substrate, shape of a foam), wherein
the shaped cartridge is disposable (page 14 line 28) and comprises
a base (210, see Batista Annotated FIG 2 below),
a top (212, see Batista Annotated FIG 2 below),
an internal wall (204, see Batista Annotated FIG 2 below) and
an external wall (see Batista Annotated FIG 2 below, external wall), wherein
the base (210) and the top of the cartridge (212) are connected to the internal wall and the external wall (see Batista Annotated FIG 2 below), wherein
the internal wall (204) delimits one or more longitudinal channels (208) void of and extending through the foamed aerosol-generating material (see Batista Annotated FIG 2 below).
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From the base to the top, and wherein the shaped cartridge is air permeable Batista discloses the shaped cartridge is air permeable (page 3 lines 22-24).
Specifically, Batista teaches the shaped cartridge is fluid permeable which inherently includes air permeable as air is a fluid, furthermore on page 3 lines 22-24 Batista teaches this fluid permeability allows aerosol to pass through the fluid permeable portions. Thus, the cartridge is air permeable.
Batista also teaches that the cartridge can be in an open mesh carrier or other matrix, which would also be fluid and air permeable and would extend from the base to the top (see page 18 lines 25-31)
Batista teaches the base, the top, the internal wall, and the external wall are of a singular construction (connected to each other, see Batista FIG 2, note how the parts are illustrated as being connected as shown in the drawing, although Batista fails to explicitly disclose that the base, the top, the internal wall, and the external wall are all connected to each other.
However, Batista fails to explicitly disclose that the base, top, internal wall, and external wall are of a singular integral construction. However, it would be obvious to construct the base, top, internal wall, and external wall from integral construction. The use of a one-piece, integrated construction instead of the structure disclosed or taught in the prior art would have been obvious to a person of ordinary skill in the art. See MPEP § 2144.04 (V)(B).
Regarding Claim 3, Batista teaches the claim limitations as set forth above. Additionally, Batista teaches the one or more longitudinal channels extend predominantly parallel to or about a longitudinal axis of the shaped cartridge (see Batista Annotated FIG 2, note the longitudinal channel extends parallel to the longitudinal axis).
Regarding Claim 4, Batista teaches the claim limitations as set forth above. Additionally, Batista discloses the one or more longitudinal channels are configured to fit about a heat-generating element of a heating device (See FIG 1, note heat assembly 300 inside the one or more longitudinal channels).
Regarding Claim 5, Batista teaches the claim limitations as set forth above. Additionally, Batista teaches the one or more longitudinal channels are straight (see Batista Annotated FIG 2 above, channel 208 is straight).
Regarding Claim 6, Batista teaches the claim limitations as set forth above. Additionally, Batista teaches the cross-section perpendicular to the longitudinal axis of the one or more longitudinal channels comprises a circular profile (see page 22 lines 7-8, hollow cylindrical shape through which extends an internal passageway 208, the perpendicular cross section of a cylinder is a circle.)
Regarding Claim 7, Batista teaches the claim limitations as set forth above. Additionally, Batista teaches the cross-section perpendicular to the external wall of the shaped cartridge has a circular or polygon shape (see page 17, the cartridge may have a generally cylindrical shape and may have any desired cross section, e.g., circular, hexagonal, octagonal, or decagonal).
Regarding Claim 8, Batista teaches the claim limitations as set forth above. Additionally, Batista teaches the base of the cartridge is substantially flat. (see FIG 2, base 210 is flat)
Regarding Claim 10, Batista teaches the claim limitations as set forth above. Additionally, Batista teaches the cartridge is made of a material comprising temperature-resistant (page 19 line 26, thermally stable) polymeric (page 17, line 25, polymeric compound) foam (page 17 line 17; foam-like material, see also page 19 line 33). Examiner notes that the foam would inherently have temperature resistant to function at the temperatures necessary to perform the disclosed function of being a solid aerosol forming substrate.
Regarding Claim 11, Batista discloses the claim limitations as set forth above. (see also claim interpretation in 112b rejection above) Additionally, Batista teaches an opening (at least one opening to allow fluid to permeate (page 16 lines 14-15) are provided to the cartridge for filling of materials (page 14, line 26-29; the cartridge is removable and refillable, also see FIG 1)
Thus, an ordinary artisan would appreciate that as the cartridge is fillable (page 14, line 26-29) as set forth above and as the cartridge has openings that allow fluid to permeate (page 16 lines 14-15), it would obviously include openings that would allow the cartridge to be filled with materials.
Regarding Claim 13, Batista teaches the claim limitations as set forth above.
Additionally, Batista teaches the cartridge has one or more individual compartments (see page 16 lines 23 and 24; the cartridge may comprise a first sealed compartment and a second sealed compartment), wherein
the compartments are filled with different materials (page 16 line 22; the first and second aerosol forming substrates may be different), comprising
aerosol-generating tobacco-containing substrate (page 18 lines 6-7; the liquid aerosol forming substrate may comprise tobacco).
Regarding Claim 14, Batista teaches between 10% and 33% of the total volume of the cartridge is comprised of the one or more longitudinal channels which are void of the aerosol-generating material. (see Batista annotated FIG 2-1 below, note the (area of the) middle column is duplicated and superimposed over the diagram. Batista does not explicitly set forth the respective volumes of each part but based on the relative size of the longitudinal channel relative to the rest of the cartridge, it would be obvious to a person of ordinary skill in the art that the longitudinal channel of Batista is about 20% the total volume of the cartridge.
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Regarding Claim 15, Batista teaches the claim limitations set forth above. Additionally, Batista teaches a vaping system, comprising: an aerosol-generating article according to claims 1 (see rejection of claim 1 above); and
a vaping device comprising a heating-generating element fit within the one or more longitudinal channels within the cartridge (see FIG 1, heat generating element is fit in the longitudinal channel. See also FIG 2).
Regarding Claim 16, Batista teaches the claim limitations set forth above. Additionally, Batista teaches the shaped cartridge comprises a foamed aerosol-generating material (page 19, lines 32-33, aerosol generating material comprises a foam, gel, or slurry).
Regarding Claim 17, Batista teaches the claim limitations as set forth above. Additionally, Batista teaches the base of the shaped cartridge having a surface complimentary to a shape of a heat-generating element.
The instant specification describes complimentary to a shape of a heat generating element as “such to increase contact points” which is interpreted to mean having a shape to increase surface area of the heat generating element (with the aerosol generating material in the shaped cartridge), instant spec page 4 lines 15-20, which is consistent with the specification.
Accordingly, Batista teaches a heating element in the shape of a coil that has a shape that increases contact points or increases contact of the heating element with the aerosol generating material in the shaped cartridge in FIG 3A.
Regarding Claim 18, Batista teaches the claim limitations as set forth above. Additionally, it would be obvious to a person of ordinary skill in the art to duplicate the longitudinal channel (see Batista annotated FIG 2 above) so there are two primary airflow channels. The mere duplication of parts, without any new or unexpected results, is obvious to one of ordinary skill in the art. See MPEP § 2144.04 VI B.
Response to Arguments
Applicant’s arguments, see Applicant Arguments/Remarks, filed 11-18-2025, with respect to the rejection(s) of claim(s) 1, 3-8, 10-11, and 13-15 under 35 USC 103 have been fully considered but are not found persuasive.
Applicant argues on page 7 of remarks:
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This is not found persuasive because the claims require integral construction, which is taught by modified Batista as set forth above.
For example, Applicant continues by arguing on the bottom of page 7:
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This is not found persuasive because integrated fixed materials can still be integrated and made of the same material but still have fundamentally different purposes. For example, it would be obvious to modify a portion of the integrated construction to include physical properties in the integral construction to accommodate different purposes and for the same material to have different properties, e.g., a single integrated plastic piece with a porous capillary enabled section and a non-porous section that might prohibit the conveyance of liquids. Although the claims require the components are integrated the claims do not require that the parts be constructed for the same purposes.
Applicant lastly argues on page 8 regarding claim 18:
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This is found persuasive. Accordingly, the rejection is withdrawn. However, upon further consideration a new ground of rejection is made in view of Batista as set forth above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael T Fulton whose telephone number is (703)756-1998. The examiner can normally be reached Monday-Friday 7:00 - 4:30 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H Wilson can be reached on 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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/M.T.F./Examiner, Art Unit 1747
/RUSSELL E SPARKS/Primary Examiner, Art Unit 1755