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 .
Response to Submission
Applicant’s submission filed on 2026 March 11 has been entered. Claims 1, 3-11, and 13-18 are pending. Claims 14-15 remain withdrawn.
Claims 1, 3-11, 13, and 16-18 are presently examined.
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.
Claims 1, 3-5, 7-8, 11, 13, and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Fringeli (WO 2019170886 A1 cited on an IDS) in view of Achterholt (DE 3400660 A1 with reference made to machine translation).
Claims 1, 5, 11, and 17: Fringeli teaches smoking substitute device (fig. 1 and p. 22, lines 22-27, #10) comprising:
a body (12) having a cavity (32) configured to receive (p. 23, lines 3-4) an aerosol-generating consumable (aerosol-generating article);
a closure (42) moveable by rotary movement between a first position in which the closure covers the cavity (p. 24, lines 10-13, closed position which is shown in fig. 3) and a second position in which the cavity is substantially uncovered (p. 24, lines 14-17, open position which is shown in fig. 5),
wherein the closure (42) is external to the body (12) of the device for allowing a user to move the closure between the first position (fig. 3) and the second position (fig. 5),
wherein a rod heater (fig. 1 and p. 22, lines 22-27, #22) is disposed within the cavity (32) along a longitudinal axis of the body (12),
wherein a portion of the closure (42) is exposed to an outer surface of the body (12) to allow a user to rotate the closure (42) between the first position (fig. 3) and the second position (fig. 5).
Fringeli does not explicitly teach that the closure is disposed at least partially within the body and comprises a through-hole bore perpendicular to an axis of rotation of the closure, the through-hole bore aligns with the cavity to provide a passage for inserting an aerosol-generating consumable through the closure and into the cavity when the closure is in the second position,
the closure is provided with a handle,
the closure is interposed between an opening to the cavity and the rod heater,
and the closure is mounted concealed within the body.
Achterholt, working in the field of rotatable closures pertinent to Fringeli and applicant, teaches a device (fig. 1-2 and [9]) comprising a closure (14) movable by rotary movement between a closed position (fig. 2) and an open position (fig. 1),
wherein the closure (14) is disposed at least partially within a body (10) and comprises a through-hole bore (18) perpendicular to an axis of rotation (axis extending into page) of the closure (14),
wherein the through-hole bore (18) aligns with a cavity (interior of device) to provide a passage for access to the cavity (interior of device) when the closure (14) is in an open position (fig. 1),
wherein the closure (14) is provided with a handle (34) external to the body (10) of the device for allowing a user to move the closure between a closed position (fig. 2) and the open position (fig. 1),
wherein the closure (14) is interposed between an opening (38) to the cavity (interior of device) and the cavity (interior of device),
wherein the closure (14) is mounted concealed within the body (10),
such that the closure can be cheaply manufactured [4], can be easily operated by a single finger [4], can hermetically seal the device in a first, covered position [4], and such that the handle can engage the closure into a detent [16].
Fringeli teaches a closure that is a rotating plate (Fringeli fig. 3-5). Achterholt teaches that a closure comprising a through-hole bore perpendicular to an axis of rotation improves upon a closure that is a rotating plate [3] to yield expectation to succeed. Furthermore, Achterholt’s closure is generic to a container [2] and does not require an intended use.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to reshape Fringeli’s closure as taught by Achterholt’s such that the closure is disposed at least partially within the body and comprises a through-hole bore perpendicular to an axis of rotation of the closure, the through-hole bore aligns with the cavity to provide a passage for inserting an aerosol-generating consumable in the cavity when the closure is in the second position, wherein the closure is provided with a handle external to the body of the device for allowing a user to move the closure between the first position and the second position, wherein the closure is provided with a handle, wherein the closure is interposed between an opening to the cavity and the rod heater, because doing so would enable the closure to be cheaply manufactured, to be easily operated by a single finger, and to hermetically seal the device in the first position, and would enable the closure to engage into a detent.
Claims 3-4: modified Fringeli teaches the device according to claim 1, wherein the device comprises a detent (fig. 11 and p. 24, lines 32-36, #171) comprising a raised feature on a surface of the device body (12) to hold the closure (42) in the second position (171 holds 42 against returning to the first position).
Achterholt teaches a detent (fig. 1-2 and [16], #44) comprising a raised feature on a surface of the device body (10) to hold the closure (14) in a closed position (#44 locks #14 into a closed position), such that the closure can hermetically seal the device [16].
Fringeli and Achterholt both teach detents to hold a closure, so one of ordinary skill applying Achterholt’s closure to Fringeli would modify Fringeli’s detent in kind to hold Achterholt’s closure.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, while applying Achterholt’s closure teachings to Fringeli, to make Fringeli’s detent hold the closure in the first position, because doing so would enable the closure to hermetically seal the device.
Claim 7: modified Fringeli teaches the device according to claim 1, further comprising:
a sensor (p. 26, lines 7-13, #26) for detecting a position of the closure;
a heater (fig. 1 and p. 22, lines 28-33, #22) for heating the consumable (aerosol-generating article) when received in the cavity (32);
and a controller (p. 26, lines 7-13, #18) configured to receive a signal from the sensor (26), indicative of a position of the closure, and to control the heater (22) in response to the received signal (p. 26, lines 7-13).
Claim 8: modified Fringeli teaches the device according to claim 7, wherein the sensor is configured to generate a signal upon detecting that the closure is in the first position (p. 26, lines 7-10, when a closed position is detected), and wherein the controller deactivates the heater based on the received signal (heating is disabled).
Claim 13: modified Fringeli teaches a smoking substitute system, comprising a smoking substitute device according to claim 1 and an aerosol generating consumable (p. 23, lines 9-12, device #10 and an aerosol-generating article form an aerosol-generating system).
Claim 16: modified Fringeli teaches the smoking substitute device of claim 1, wherein the body (fig. 1 and p. 22, lines 28-33, #12) includes an electronics cavity (18).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Fringeli (WO 2019170886 A1 cited on an IDS) in view of Achterholt (DE 3400660 A1) as applied to claim 1 in further view of Burghaus (EP 0708031 A2 with reference made to machine translation).
Claim 6: modified Fringeli teaches the device according to claim 1, wherein the closure is made of generic material.
Modified Fringeli does not explicitly teach that the closure is made of flexible material.
Burghaus, working in the field of rotary closures pertinent to Fringeli, Achterholt, and applicant, teaches a closure (fig. 9 and [26], #16) movable by rotary movement between a closed position and an open position (16 is toggled between positions),
wherein the closure is made of flexible material (elastic, non-slip material),
such that the closure can elastically seal a device [12].
Burghaus’ closure [Burghaus 12] and Achterholt’s closure [Achterholt 4] teach the same function of sealing a device to yield expectation to succeed.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use, as modified Fringeli’s generic closure material, Burghaus’ flexible closure material, because doing so would help the closure to elastically seal the device.
Claims 9-10 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Fringeli (WO 2019170886 A1 cited on an IDS) in view of Achterholt (DE 3400660 A1) as applied to claim 1 in further view of Rodday (DE 4337627 C1 with reference made to machine translation).
Claims 9-10 and 18: modified Fringeli teaches the device according to claim 1, wherein the closure comprises a biasing means comprising a spring (fig. 6 and p. 23, lines 31-33, #166) which urges the closure (42) into the first position (p. 25, lines 11-14, #166 biases #42 towards the first position),
wherein the biasing means comprises an interaction (48) between the closure (42) and a part of the body (10).
Rodday teaches a biasing means comprising a spring (fig. 2 and [33], #14) which urges a closure (7) into a closed position (14 reverses rotation of 7 to spontaneously close a channel),
wherein the biasing means comprises an interaction (9) between the closure (7) and a part of a body (2),
such that the closure is only opened under tight connection and otherwise closes to seal the device [9].
Fringeli and Rodday both teach springs to urge a closure, so one of ordinary skill applying Achterholt’s closure to Fringeli would modify Fringeli’s spring in kind to urge Achterholt’s closure.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, while applying Achterholt’s closure teachings to Fringeli, to make Fringeli’s spring urge the closure into the first position as taught by Rodday, because doing so would enable the closure to only open under tight connection and otherwise close to seal the device.
Response to Arguments
Applicant’s arguments of 2026 March 11 have been carefully considered but are not persuasive.
Applicant’s arguments are similar to the arguments of 2025 July 14 and are directed to the non-final rejection of 2025 December 11.
Applicant argues (p. 7, [4] – p. 8, [2]) that Achterholt is non-analogous to Fringeli. However, Achterholt is directed to a closure for a generic container [Achterholt 2], wherein the closure improves upon a rotating plate [Achterholt 3], to yield reasonable pertinence to Fringeli’s rotating plate.
In particular, applicant argues that Achterholt is directed to closures for containers “such as” toothpaste tubes designed to seal flowable contents. However, Achterholt is directed to a closure for a generic container [Achterholt 2], toothpaste tubes are mentioned only as one example application [Achterholt 10], and the words “flow”, “flowable”, and “viscous” appear to be absent from Achterholt. One of ordinary skill weighing Fringeli against Achterholt would see that Fringeli describes a closure completely covering a cavity against foreign objects as advantageous (Fringeli p. 16, lines 13-17), so one of ordinary skill would be motivated to improve upon Fringeli’s rotating plate completely covering a cavity by using Achterholt’s rotating closure hermetically sealing a cavity. Furthermore, Achterholt’s closure is cheap to manufacture [4] and operable with one finger [4].
Applicant argues (p. 9, [4]) that Achterholt and Fringeli are not similar per rationale C, that Fringeli does not identify a problem with a rotating plate per rationale D, and that Achterholt does not teach, suggest or motivate a modification per rationales F and G. However, as in the above response, Fringeli recognizes an advantage of preventing foreign objects from entering a cavity (Fringeli p. 16, lines 13-17), and Achterholt teaches a closure hermetically sealing foreign objects from entering a cavity [Achterholt 4], so the prongs of rationales C, D, F, and G are met. “It's enough… to show that there was a known problem… in the art, that [another reference]… helped address that issue, and that combining the teachings of [the two references] wasn't beyond the skill of an ordinary artisan. Nothing more is required to show a motivation to combine under KSR.” Intel Corp. v. PACT XPP Schweiz AG, 61 F.4th 1373, 1380-81, 2023 USPQ2d 297 (Fed. Cir. 2023).
Applicant argues (p. 9, [final paragraph] – p. 10, [1]) that applying Achterholt to Fringeli would change Achterholt’s principle of operation. However, in the examiner’s proposed modification, Fringeli is the base reference being modified, not Achterholt.
Applicant further argues that making Achterholt’s closure able to receive a tobacco stick would require eliminating sealing surfaces, changing channel dimensions, and adding alignment features. However, applicant’s arguments appear to be speculation. Achterholt’s closure is directed to containers of generic application, in particular of tube shape [Achterholt 2], and discloses no dimensions of the closure or other details that would be broken by a tobacco stick.
Applicant argues (p. 10, [2]) that Fringeli is already movable by a single finger, that Achterholt is not in fact cheap to manufacture, and that adding a hermetic seal to Fringeli would create unwanted friction and wear. The examiner agrees that Fringeli is already movable by a single finger and was merely indicating that Achterholt teaches the same principle of easy movement. However, in plain language, Achterholt teaches a closure that is cheap to manufacture [Achterholt 4], and regardless of the relative cheapness between Fringeli and Achterholt that applicant appears to be arguing, one of ordinary skill would see that Achterholt’s “inexpensive” closure is suitable to replace Fringeli’s rotating plate. Moreover, the supposition that adding a hermetic seal to Fringeli would create unwanted friction and wear appears to be speculation. Achterholt’s closure is operable by one finger [Achterholt 4] and therefore yields low enough friction and wear to function and be applicable to Fringeli.
Conclusion
THIS ACTION IS MADE FINAL. 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 Tobey C. Le whose telephone number is (703)756-5516. The examiner can normally be reached Mon-Thu 8:30-18:30 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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/TOBEY C LE/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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