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 20-25 and 27-38 are pending.
Claims 20, 29 and 38 have been amended.
Claims 31, 32 and 34 remain withdrawn.
Claim 26 has been cancelled.
Response to Arguments
Applicant’s arguments, filed 12/12/2025, with respect to claim 38 have been fully considered and are persuasive. The rejection of claim 38 has been withdrawn, and claim 38 is in condition for allowance.
Applicant's remaining arguments filed 12/12/2025 have been fully considered but they are not persuasive.
Regarding the argument that although many different cartridge variations are taught in Oglesby, all fail to teach or suggest two air and vapor permeable surfaces at the ends with a perforated wrapper extending between, the Examiner respectfully disagrees. The orientation of the cartridge of modified Monsees is capable of being modified, as air is able to be transverse through all the sides of the cartridge as claimed. Please see figures below.
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 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.
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.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 20-25, 27-30, 33, 35-37 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 20070283972 (Monsees hereinafter) in view of US 20100024834 (Oglesby hereinafter).
Regarding claims 20, 23 and 27, Monsees teaches a vaporizer apparatus (10) comprising:
a cartridge having a first end, an opposing second end, and a longitudinal axis extending therebetween (30);
the cartridge (30) containing a vaporizable material within a wrapper (32) having perforations (33) configured to allow air to pass through the wrapper ([0058]);
the wrapper comprising a single sheet of aluminum foil ([0061]);
the vaporizable material comprising tobacco (31) and a vapor forming medium, specifically glycerin ([0059]); and
a device (10) comprising:
an oven region, specifically heater (16), comprising an oven chamber (15) configured to receive the cartridge and to heat the vaporizable material ([0031]); and
an air inlet (22) through which air is drawn into the oven region ([0035]).
Monsees does not expressly teach that the cartridge comprising a first air and vapor permeable surface at the first end and a second air and vapor permeable surface at the second end, the first and second air and vapor permeable surfaces each configured to allow gas transfer through the vaporizable material, the gas transfer comprising entry of air into the cartridge and exit of the air and a vapor generated by heating the vaporizable material, wherein each of the first and second air and vapor permeable surfaces are formed of a permeable material, and wherein the two or more perforated surfaces extend from the first end to the second end and between the first and second air and vapor permeable surfaces, and an airflow path that traverses the wrapper between the first and second air and vapor permeable surfaces.
Oglesby teaches a vaporizer apparatus (5) comprising a cartridge (1) of tobacco for vaporizing constituents of the tobacco (abstract). Oglesby teaches that the cartridge comprises a first and a second, respectively, air and vapor perforated surfaces (49 and 53) which are on different sides of the cartridge (Figs. 15 and 16), wherein the two air and vapor perforated surfaces, respectively, are perforated aluminum foil (each surface comprises a single sheet of aluminum foil) and configured to allow air to pass through the wrapper ([0104]). Oglesby further teaches that the cartridge comprises an additional air and vapor permeable surface (45) which is a permeable metal gauze material and configured to allow gas transfer through the vaporizable material ([0099] and Figs. 11 and 12). Oglesby teaches that the two or more perforated surfaces (49 and 53) extend between the air and vapor permeable surface (45) (Figs. 11, 12,15 and 16). Oglesby teaches that gas transfer comprises entry of air into the cartridge and exit of the air and a vapor generated by heating the vaporizable material ([0088]). It would have been obvious for one of ordinary skill in the art at the time of filing to have modified Monsees to include two vapor perforated surfaces and a permeable surface wherein the perforated surfaces extend between the permeable surface because more accurate control of the level of the vaporized constituent or constituents in the aerosol can be achieved and the pressure drop which is required to be applied by a user during drawing on the mouthpiece in order to draw the aerosol from the hollow interior region of the container can be minimized ([0053]-[0054]) as suggested by Oglesby.
PNG
media_image1.png
337
373
media_image1.png
Greyscale
Modified Monses does not expressly teach two or more air and vapor permeable surfaces, as both Monsees and Oglesby appear to teach roughly cylindrical shaped cartridges.
However, the courts have held that changes in shape are a matter of design choice which a person of ordinary skill in the art would have found obvious in the absence of new or unexpected results that the particular configuration of the claimed container was significant. See MPEP 2144.04. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the cartridge of modified Monsees from a cylinder with three surfaces to a cube or rectangular prism which have six surfaces with a reasonable expectation of success and predictable results.
PNG
media_image2.png
450
766
media_image2.png
Greyscale
Regarding claim 21, modified Monsees that the air and vapor permeable material is a paper based material, wherein paper is comprised of cellulose (Oglesby, [0126]).
Regarding claim 22, modified Monsees teaches that the cartridge is configured to remain substantially intact during the heating of the vaporizable material in the wrapper (Monsees, [0062]).
Regarding claims 24, 25 and 28, modified Monsees teaches that the heater is a battery- powered electric heater (Monsees, [0056]), which heats the cartridge to a temperature below about 400 F (Monsees, [0040]).
Regarding claims 29 and 36, Monsees teaches a cartridge (30) configured for use in a vaporizer device (10) comprising an oven chamber (15), the cartridge (30) comprising:
a first end, an opposing second end, and a longitudinal axis extending therebetween (30);
a wrapper (32) having perforations (33) and configured to allow air to pass through the wrapper ([0058]);
the wrapper comprising a single sheet of aluminum foil ([0061]); and
a vaporizable material within the wrapper ([0059]).
Monsees does not expressly teach a first air and vapor permeable surface at the first end and a second air and vapor permeable surface at the second end, the first and second air and vapor permeable surfaces each configured to allow gas transfer through the vaporizable material, the gas transfer comprising entry of air into the cartridge and exit of the air and a vapor generated by heating the vaporizable material when the cartridge is placed in the oven chamber, each of the first and second air and vapor permeable surfaces are formed of a permeable material, wherein the two or more perforated surfaces extend from the first end to the second end and between the first and second air and vapor permeable surfaces.
Oglesby teaches a vaporizer apparatus (5) comprising a cartridge (1) of tobacco for vaporizing constituents of the tobacco (abstract). Oglesby teaches that the cartridge comprises a first air and vapor permeable surface at a first end and a second air and vapor permeable surface at a second end (49 and 52 in Fig below), a longitudinal axis extending between the first end and an opposing second end (extending between 49 and 52 in Fig below); wherein the two air and vapor perforated surfaces are perforated aluminum foil (each surface comprises a single sheet of aluminum foil) and configured to allow air to pass through the wrapper ([0104]). Oglesby further teaches that the cartridge comprises an additional air and vapor permeable surface (45) which is a permeable metal gauze material and configured to allow gas transfer through the vaporizable material ([0099] and Figs. 11 and 12). Oglesby teaches that the two or more perforated surfaces (49 and 53) extend between the air and vapor permeable surface (45) (Figs. 11, 12,15 and 16).
PNG
media_image3.png
216
239
media_image3.png
Greyscale
Oglesby teaches that gas transfer comprises entry of air into the cartridge and exit of the air and a vapor generated by heating the vaporizable material ([0088]). It would have been obvious for one of ordinary skill in the art at the time of filing to have modified Monsees to include two vapor perforated surfaces and a permeable surface wherein the perforated surfaces extend between the permeable surface because more accurate control of the level of the vaporized constituent or constituents in the aerosol can be achieved and the pressure drop which is required to be applied by a user during drawing on the mouthpiece in order to draw the aerosol from the hollow interior region of the container can be minimized ([0053]-[0054]) as suggested by Oglesby.
Modified Monses does not expressly teach two or more air and vapor permeable surfaces, as both Monsees and Oglesby appear to teach roughly cylindrical shaped cartridges.
However, the courts have held that changes in shape are a matter of design choice which a person of ordinary skill in the art would have found obvious in the absence of new or unexpected results that the particular configuration of the claimed container was significant. See MPEP 2144.04. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the cartridge of modified Monsees from a cylinder with three surfaces to a cube or rectangular prism which have six surfaces with a reasonable expectation of success and predictable results.
[AltContent: textbox (Perforated Aluminum)][AltContent: textbox (Perforated Aluminum)][AltContent: textbox (Air & vapor permeable material (metal guaze))][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Longitudinal axis)][AltContent: textbox (First end )][AltContent: textbox (Second end)][AltContent: arrow][AltContent: arrow]
Regarding claims 30 and 33, modified Monsees teaches that the vaporizable material comprises fine pieces of tobacco (Monsees, [0059]).
Regarding claim 35, modified Monsees teaches that the vaporizable material comprises a vapor forming medium, specifically glycerin (Monsees, [0059]).
Regarding claim 37, “the wrapper is pre-perforated with the perforations such that the wrapper does not require being punctured during use” is a product by process limitation. The courts have held that "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." See MPEP 2113 I. The perforated aluminum foil is interpreted to read on the claimed product.
Reasons for Allowance
Claim 38 is allowed.
The following is an examiner’s statement of reasons for allowance:
No prior art discloses the claimed cartridge in claim 38. Specifically, the prior art does not teach or disclose that the wrapper has two or more perforated surfaces configured to allow air to pass through the wrapper, the wrapper comprising cellulose and a single sheet of aluminum foil, wherein each of the two or more perforated surfaces comprise perforations provided in a perforation pattern, in addition to the other claimed limitations.
The closest prior art of record is Oglesby (US 20100024834). Oglesby teaches a vaporizer apparatus (5) comprising a cartridge (1) of tobacco for vaporizing constituents of the tobacco (abstract). Oglesby teaches that the cartridge comprises two air and vapor perforated surfaces (49 and 53) which are on different sides of the cartridge (Figs. 15 and 16), wherein the two air and vapor perforated surfaces are perforated aluminum foil (each surface comprises a single sheet of aluminum foil) and configured to allow air to pass through the wrapper ([0104]). Oglesby further teaches that the cartridge comprises an additional air and vapor permeable surface (45) which is a permeable metal gauze material and configured to allow gas transfer through the vaporizable material ([0099] and Figs. 11 and 12). Oglesby teaches that the two or more perforated surfaces (49 and 53) extend between the air and vapor permeable surface (45) (Figs. 11, 12,15 and 16). Oglesby teaches that gas transfer comprises entry of air into the cartridge and exit of the air and a vapor generated by heating the vaporizable material ([0088]).
Oglesby does not teach that the wrapper comprising cellulose and a single sheet of aluminum foil.
Monsees teaches a vaporizer apparatus (10) comprising: a cartridge (30) containing a vaporizable material within a wrapper (32) having perforations (33) configured to allow air to pass through the wrapper ([0058]); the wrapper comprising a single sheet of aluminum foil ([0061]); the vaporizable material comprising tobacco (31) and a vapor forming medium, specifically glycerin ([0059]). Monsees does not teach that the cartridge has a first end, an opposing second end, and a longitudinal axis extending therebetween, the cartridge having two or more perforated surfaces configured to allow air to pass through the wrapper; the wrapper comprising a single sheet of aluminum foil; the cartridge comprising a first air and vapor permeable surface at the first end and a second air and vapor permeable surface at the second end, the first and second air and vapor permeable surfaces each configured to allow gas transfer through the vaporizable material, the gas transfer comprising entry of air into the cartridge and exit of the air and a vapor generated by heating the vaporizable material, wherein each of the first and second air and vapor permeable surfaces are formed of a permeable material, and wherein the two or more perforated surfaces extend from the first end to the second end and between the first and second air and vapor permeable surfaces; and an airflow path that traverses the wrapper between the first and second air and vapor permeable surfaces. Monsees does not teach that the wrapper comprising cellulose and a single sheet of aluminum foil.
Thus, claims 38 is in condition for allowance.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
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 YANA B KRINKER whose telephone number is (571)270-7662. The examiner can normally be reached Monday, Wednesday, Thursday and Friday.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
YANA B. KRINKER
Examiner
Art Unit 1755
/YANA B KRINKER/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
Prosecution Insights