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 3-6 and 9-22 are pending and subject to this Office Action. Claims 21 and 22 have been added.
Response to Arguments
Applicant's arguments in After Final, pages 5-14, filed 08 November 2025, with respect to the rejections of claims 3-6 and 9-20 under 35 USC § 103 have been fully considered and are not persuasive.
Claim 21 has been added to further define the air flow pathway through the device. Claim 22 has been added to describe the shape of the supporter.
Applicant argues, pages 7-10, that the movable support plate of He would not be compatible with the housing structure of Zinovik and that there would be no benefit to adding the support plate of He without structural changes to Zinovik.
The examiner disagrees. The device taught by Zinovik uses a solid substrate inserted into the device for heating. Zinovik acknowledges that special care must be taken to prevent the “accidental disassociation of the solid materials” [0018] Zinovik teaches this can be done through the use of an overwrap; however, a person of ordinary skill would look to teachings to help improve the device to prevent the opening of the aerosol generating article. In doing so, the teachings of He and the use of a loading and unloading mechanism modification would be considered as it would further prevent possible damage to the article during loading and unloading.
Applicant argues, pages 11-12, that the cap of Hayward is part of the cigarette itself and not part of the device and thus it would not be obvious to look to the teachings of Hayward when considering the teachings of Zinovik or He.
Neither Zinovik nor He discuss possible materials that would be used to hold an aerosol generating article that could be used while the article was being consumed. Hayward is used to modify the teachings of Zinovik and He to teach a possible material for making a cigarette supporting member. The sleeve is made from a ceramic material that is a porous ceramic material that comprises alumina, specifically aluminum oxide. Hayward further teaches that the ceramic sleeve can be coupled to a support portion that has openings at the periphery. This design would lead a person having ordinary skill to consider using the material taught by of Hayward to the support plate of He.
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.
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 16, 5, 9-10, 12-13, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Zinovik, et al (US20170071250A1) and further in view He (CN108552598A, hereinafter referring to the English machine translation provided) and Hayward, et al (US5159940A)
Regarding claim 16, Zinovik teaches an inductive heating assembly (aerosol generating device) configured to heat an aerosol forming substrate. (Abstract) Zinovik teaches that aerosol forming substrate that has a susceptor material [0004] that is a particulate that is distributed throughout the aerosol generating substrate.[0012]
Zinovik further teaches the heating system is an inductive heating device that is used for heating the aerosol generating substrate is comprised of a housing and a heating chamber that can have an induction coil. [0030]
Zinovik teaches that the aerosol generating substrate is cylindrical and may be enclosed by a tubular casing to aid in stabilizing the shape and prevent disassociation/separation of the solid material. [0018] The prior art teaches that the aerosol-forming substrate may be releasably held within a heating chamber of the inductive heating device. [0021]
However, Zinovik is silent with respect to the casing of the aerosol generating article providing only a minimal description of possible design.
He, directed to the design of a cigarette fixing device for an electronic cigarette, teaches a cigarette fixing device used to aid in the removal of cigarettes from an electronic smoking device. ([0002], [0006]) He teaches a fixing tube is comprised of a sleeve and a smoke-removing plate (supporter) where the sleeve surrounds the aerosol generating article and the support plate is at the lower end of the sleeve. [0008] He discloses that the support plate contains multiple holes in the bottom of the support plate. (Fig 7) A person having ordinary skill would recognize that air would travel through these holes and into the aerosol generating article.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Zinovik by using a cigarette fixing device as taught by He because both Zinovik and He are directed to aerosol generating devices and articles, He teaches that the use of the fixing device aids in removal and prevents breakage of the aerosol generating article [0009], and this involves the use of known technique using a fixing device for an aerosol generating article to improve similar devices in the same way.
Neither Zinovik or He discuss the material used to make the casing or fixing device
Hayward, directed to the design of smoking articles, teaches that an aerosol generating article can comprise a sleeve that circumscribes the heating element and the flavor material and that the sleeve is designed aid in heat transfer. (Abstract, Claim 34) This sleeve is made of a porous ceramic material that comprises alumina. (Claim 37) Hayward teaches a preferred ceramic material is cordierite which is known to contain aluminum oxide. However, this is merely a preferred material and would not prevent a person having ordinary skill to considering other ceramic materials that meet Hayward’s requirement that the ceramic material contain alumina.
Hayward further teaches that the sleeve can be coupled with a cap (support portion) which has one or more openings on the periphery. These opening on the cap are considered to read on the vent channels of the instant application.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Zinovik and He by making the cigarette fixing sleeve and plate out of a ceramic comprising alumina as taught by Hayward because Zinovik and He and Hayward are directed to aerosol generating articles, Hayward teaches helps transfer heat via radiative heat transfer(Abstract), and this involves using a known material that is used for making similar elements in a device.
Regarding claim 5, Zinovik teaches the tubular casing may be made of a material that does not noticeably impede an electromagnetic field from reaching the aerosol generating substrate. [0034] This tubular casing is considered to read on the non-magnetic shielding.
Regarding claims 9 and 10, as discussed in claim 1, He teaches that the fixing assembly has a first opening that allows the aerosol generating article to be inserted into the sleeve such that the sleeve surrounds the aerosol generating article. [0000] He further teaches that the base plate (supporter) comprises openings as well. [0000]
Regarding claims 12 and 13, Zinovik teaches that the particulate susceptor material have a size (diameter) of 10 μm-100 μm and are distributed throughout the aerosol-forming substrate.[0012] The claimed range overlaps the range disclosed by the prior art and is therefore considered prima facie obvious. See MPEP 2144.05
Regarding claim 19, as discussed in claim 1, He teaches that the fixing assembly has a first opening that allows the aerosol generating article to be inserted into the sleeve such that the sleeve surrounds the aerosol generating article. [0000] He further teaches that the base plate (supporter) comprises openings as well. [0000] He discloses that air would enter the loading cavity from around the aerosol generating article, travel through the openings in the support plate and through the aerosol generating article before inhalation by the user.
Regarding claim 20, Zinovik teaches that the device can contain air inlets on the side of the housing that are below the location of the heating element and the support plate. And allow air to flow into the aerosol generating article from openings below the article.
Regarding claim 22, as discussed in claim 16, He teaches a fixing tube is comprised of a sleeve and a smoke-removing plate (supporter) where the sleeve surrounds the aerosol generating article and the support plate is at the lower end of the sleeve. [0008] He teaches that the fixing support is a plate and sleeve forming a cylinder. [0035l] The structure is designed such that the cigarette is inserted into the upper port (opening) of the sleeve until the cigarette abuts the supporting portion at the distal end. [0033]
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Zinovik by using a cigarette fixing device with a cylindrical supporter sleeve having an opening for a cigarette as taught by He because both Zinovik and He are directed to aerosol generating devices and articles, He teaches that the use of the fixing device aids in removal and prevents breakage of the aerosol generating article [0009], and this involves the use of known technique using a fixing device for an aerosol generating article to improve similar devices in the same way.
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Zinovik, et al (US20170071250A1), He (CN108552598A, hereinafter referring to the English machine translation provided) and Hayward, et al (US5159940A), as applied to claim 16 and further in view of SubsTech Substances & Technologies, “Alumina ceramic (97.5% alumina)”, 2017.
Regarding claims 3 and 4, Zinovik, He, and Hayward are all silent as to the properties of the alumina ceramic. Substances & Technologies teaches that alumina ceramics can have a density of 3890 kg/m3, a thermal conductivity of 35.4 W/(m K), and a specific heat capacity of 880 J/(kg K).
Hayward teaches that the ceramic material would be an ceramic containing alumina and therefore, is reasonably expected to have material properties as taught by SubsTech, which read on the claimed density, conductivity and specific heat capacity.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Zinovik, et al (US20170071250A1), He (CN108552598A, hereinafter referring to the English machine translation provided) and Hayward, et al (US5159940A), as applied to claim 16 and further in view of Drga, et al, “DENSITY OF STATES AND MAGNETIC PROPERTIES OF Al2O3 , Cr2O3 AND CrO2”, 2015
Zinovik, He, and Hayward are all silent as to the magnetic properties of the alumina ceramic. Drga, directed to the study of ceramic materials, teaches that alumina oxide and thus the ceramics made containing alumina ceramics would be diamagnetic. (Abstract)
Hayward teaches that the ceramic material would be an ceramic containing alumina and therefore, is reasonably expected to have material properties as taught by Drga including the diamagnetic properties.
Claims 11 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Zinovik, et al (US20170071250A1), He (CN108552598A, hereinafter referring to the English machine translation provided) and Hayward, et al (US5159940A), as applied to claim 16 and further in view of Mironov (US20170079325A1)
Regarding claim 11, Zinovik teaches that the susceptor material would be ferromagnetic but is silent with respect to the specific material used to make the susceptor.
Mironov, directed to the design of inductively heated aerosol generating articles, teaches that the particles used in the tobacco would be made from a ferrite /iron or nickel. [0029]
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Zinovik, He, and Hayward by having a susceptor made for the materials taught by Mironov because Zinovik, He, Hayward and Mironov are directed to aerosol generating articles, Mironov teaches that ferrite is a suitable susceptor material and is relatively inexpensive and commercially available [0028], and this involves the use of known material to improve similar devices in the same way.
Regarding claims 17 and 18, Zinovik is silent with respect to the frequency the induction coil would operate.
Mironov teaches that the frequency the inductor coil operates is between 1 MHz and 30 MHz. [0005]
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Zinovik, He, and Hayward by having a susceptor made for the materials taught by Mironov because Zinovik, He, Hayward and Mironov are directed to aerosol generating articles, Mironov teaches that by changing a frequency of the circuit a heat loss per kilogram per second may be varied [0005], and this involves the use of known material to improve similar devices in the same way.
Claims 14 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Zinovik, et al (US20170071250A1), He (CN108552598A, hereinafter referring to the English machine translation provided) and Hayward, et al (US5159940A), as applied to claim 16 and further in view of Mironov (US20170095003A1).
Regarding claims 14 and 15, Mironov, directed to the design of aerosol forming article for inductive heating, teaches the magnetic particles are mixed with the aerosol forming substrate in an amount (proportion) of about 1% and 30% by weight. (p2 [0016]) It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness. See MPEP § 2144.05.I.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Zinovik, He, and Hayward by using the mixing proportions for the magnetic particles in the aerosol generating article as taught by Mironov because Zinovik, He, Hayward, and Mironov are directed to aerosol forming article for inductive heating, Mironov teaches that “Providing an amount of magnetic particles within these ranges ensures that they are present in sufficient numbers to enable effective detection by the electrically heated aerosol-generating device during use.” (p2 [0016]), and this involves combining prior art elements according to known methods to yield predictable results.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Zinovik, et al (US20170071250A1), He (CN108552598A, hereinafter referring to the English machine translation provided) and Hayward, et al (US5159940A), as applied to claim 16 and further in view of Plujoux, et al (US20140338686A1).
Regarding claim 21, Plujoux, directed to the design of aerosol generating devices, teaches the system comprises a first air flow channel extending from the air inlet at the proximal end of the device to a distal end of the cavity, wherein the first channel extends between the heater and the external surface of the housing along at least a portion of the longitudinal extent of the cavity, and a second air flow channel extending from the distal end of the cavity to the mouthpiece portion. (Abstract, figure 4)
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Zinovik, He, and Hayward by using an air flow channel that extends down the side of the device housing and into the cavity as taught by Plujoux because Zinovik, He, Hayward, and Plujoux are directed to devices for heating aerosol generating articles, Plujoux teaches that this air flow path configuration helps to reduce the heat of the housing making the smoking article easier for the user to hold. [0003][0074] and help to prevent blockage during use. [0068], and this involves combining prior art elements according to known methods to yield predictable 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 VIRGINIA R BIEGER whose telephone number is (703)756-1014. The examiner can normally be reached M-Th: 7:30-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Phillip 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.R.B./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755