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 Amendment
Applicant's amendments to the claims filed 02 June 2026 have been acknowledged.
Status of the Claims
This office action is in response to Applicant’s amendment filed on 02 June 2026:
Claims 1-20 are pending
Response to Arguments
Applicant's arguments filed 02 June 2026 have been fully considered but they are not persuasive.
On Pages 6-8 of Applicant’s Remarks, Applicant argues that the limitation of “arranged to track” is not an intended use of the device as the Examiner claims, but a structural limitation that explains the preferential arrangement of the flow path over areas of the aerosol generating component having the greatest rate of vaporization.
In particular, Applicant notes that the “arranged to track” term is structurally defined in the specification to be “the majority of the direct flow path is within the area to be tracked”. It is indicated that the “area to be tracked is equivalent to the portions of the aerosol generating component with greater vaporization rates. Additionally, Claims 19 provides additional structural details wherein the flow path is directly above and below the portions with higher vaporization rates, whereas Claim 20 provides an alternative wherein more than 60% of the flow path lies within the area for tracking.
Examiner respectfully disagrees, noting that while Applicant’s specification does provide a percentage of the airflow path that must be within the “area to be tracked”, it is not clear what is considered to be the “area to be tracked”.
For example, while the portions of the aerosol generating component is disclosed to be “tracked”, it does not explicitly state that “the area to be tracked” is exclusively the higher vaporization portions; the “area to be tracked” could potentially be any area of the aerosol generating component that includes the higher vaporization portions. Because it is unclear what constitutes as the “area to be tracked”, the percentage of the airflow path within the “area to be tracked” does not provide further structural details that would make it apparent how the greater vaporization portions are being tracked.
Furthermore, while Applicant’s specification does provide additional structure for “arranged to track” to be wherein the flow path is directly above or below the portions of the aerosol generating component with higher vaporization portions, it is disclosed as merely an example and not an explicit requirement for being considered “arranged to track”, and is not explicitly recited in Claim 1 itself. Regardless, Examiner notes that the limitations in Claim 19 was determined to be fully disclosed by Buchberger (see Office Action dated 03 March 2026; the higher vaporization portions.
Since the “arranged to track” refers to an additional “area to be tracked” detail that is not clearly defined to include what structural components (i.e., what portions of the aerosol generating component) or specific orientations (i.e., explicitly stating that the flow path is directly above or below the greater vaporization areas), Examiner determined that the term “arranged to track” does not provide additional clear structural limitations beyond what is already recited in Claim 1.
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.
Claims 1-16, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Buchberger et al (Publication No. GB2533135A, see attached copy) in view of Illidge et al (Publication No. US20220192259A1).
Regarding Claim 1, Buchberger discloses an article for use with an electrically operated non-combustible aerosol delivery system, the article comprising:
an aerosol generating chamber (Recess 120) having one or more air inlets (Pg. 4, Line 21) and one or more outlets (Mouthpiece 35) defining a flow path therebetween (Fig. 1; Pg. 4, Lines 21-25);
and a generally planar (i.e., sheet) aerosol generating component (Heating element 103) suspended within the aerosol generating chamber such that the flow path is substantially parallel to a plane of the aerosol generating component (Figs. 3-4 and 11; Pg. 6, Lines 5-6; Pg. 13, Lines 5-9);
the aerosol generating component (103) having a portion (i.e., end of slots) configured to vaporize aerosolisable material at a higher rate than other portions of the aerosol generating component (Figs. 2-5; Pg. 6, Lines 19-34; slots in the heating element creates a serpentine path which creates portions with higher current density and hotter areas; areas with higher temperatures/heat implies higher vaporization rates);
wherein a first surface and a second surface of the aerosol generating component face towards a first wall and a second wall of the chamber, respectively, each of the first wall and the second wall being distanced from the first surface and the second surface, respectively (Buchberger, see annotated Fig. 11).
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Buchberger does not explicitly disclose the following:
the air velocity across each of the surfaces is in the range of 0.05m/s to 25m/s;
wherein the direct flow path is arranged to track said portion of the aerosol generating component configured to vaporize aerosolisable material at a higher rate than other portions of the aerosol generating components.
Regarding (I), Illidge, directed to a smoking apparatus, discloses an aerosol generating chamber (vaporization chamber 180) with an aerosol generating component (Heater 164) that passes through the vaporization chamber via vaporization inlet (172) and air flow path (Passage 170) (Figs. 19 and 21; [0154]). The inlet, passage, and chamber can be configured such that the airflow rate through the apparatus is in the range of 0-1.3 L/min, such that the average air velocity calculated from the chamber geometry is 0-1.3 m/s [0065-0066].
Illidge further discloses a vaporizer element region (i.e., aerosol-generating surfaces) located within the vaporization chamber will have an average magnitude of air velocity of at most 1.1 ms-1 (Illidge, [0072-0079]; within the air velocity range of the vaporization chamber that overlaps with the range disclosed by the Applicant).
It would have been obvious to one ordinarily skilled in the art to have selected the overlapping portion of the ranges disclosed by the Illidge because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness (see MPEP § 2144.05.I).
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to modify the aerosol generating chamber disclosed by Buchberger, to have a dimension that allows an air velocity of 0-1.3 m/s through the chamber (and subsequently the aerosol-generating/vaporizing region/surface) as disclosed by Illidge, as both are directed to an aerosol generating apparatus, where Illidge teaches the advantage of constructing the vaporization chamber/region to achieve the specified air velocity as it plays an important role in controlling the resultant aerosol particle size, where slower velocities can generate larger particle sizes which can improve nicotine delivery and minimize second-hand smoking hazards (Illidge, [0079, 0162, 0237]); this also involves applying a known teaching to a similar device to yield predictable results.
Regarding (II), it should be noted that the Courts have held that if the prior art structure is capable of performing the intended use, then it meets the claim (see MPEP § 2114). In this case, Applicant merely states that the aerosol generating component is configured such that the flow path is arranged to track an aerosol generating portion that vaporizes at a higher rate but does not provide any further structural limitations that would define said flow path “arranged to track”.
Since there are no additional structures to define the direct flow path “arranged to track”, the limitation is treated as an intended use of the aerosol generating component. As previously described, Buchberger already discloses all structural features of Applicant’s claimed aerosol generating component and flow path such as the planar shape, parallel flow path, portions of said component having higher vaporization rates, and suspended disposition relative to the aerosol generating chamber.
Therefore, if Buchberger discloses all the structural features of the claimed aerosol generating component as described in Claim 1, one ordinarily skilled in the art would reasonably conclude that said aerosol generating component would function and be capable of having its parallel flow path track portions of the aerosol generating component where vaporization rates are higher, similarly as claimed, absent evidence to the contrary.
Regarding Claim 2, Buchberger further discloses the first surface and the second surface of the aerosol generating component are parallel to the first wall and the second wall of the aerosol generating chamber (see annotated Fig. 11; Pg. 13, Lines 5-9).
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Regarding Claim 3, Buchberger further discloses the first wall and the second wall are separated by 4mm or less (Pg. 8, Lines 35-37).
It should be noted that while the first and second wall separation distance is not explicitly disclosed, Buchberger discloses that the aerosol generating chamber (Recess 120) is defined by the upper and lower carrier component and has a generally rectangular cross-section with a width of 4mm and height of 2.2mm (Pg. 8, Lines 35-37). The height of the chamber is representative of the distance separating the two longer surfaces (i.e., first and second wall) of the chamber (see annotated Fig. 11):
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Regarding Claim 4, Buchberger further discloses the first wall and the second wall are separated by 3mm or less (Pg. 8, Lines 35-37, see annotated Fig. 11 above; cavity height is equivalent to wall separation distance).
Regarding Claim 5, Buchberger further discloses the first wall and the first face are separated by 2mm or less (Pg. 8, Lines 35-37, see annotated Fig. 11 above; cavity height is equivalent to wall separation distance).
It should be noted that while the distance separating the first wall and first face/surface is not explicitly disclosed, it can be calculated based on the disclosed cavity height and heating element placement. Since the heating element sits between the two portions that form the chamber (Fig. 11; Pg. 8, Lines 35-37; Pg. 9, Line 1; Recess 120), the height/wall separation is halved from 2.2 to 1.1mm. As the heating element is between the first and second walls, the halved distance would be representative of the distance from a wall defined by the chamber cavity (i.e., first wall) and to the surface of the heating element facing the cavity wall (i.e., first surface/face) (see annotated Fig. 11 below):
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Furthermore, as the heating element has a thickness (i.e., surface separation) of 0.15 mm (Buchberger, Pg. 6, Lines 18-19), the actual separation distance would be less than 1.1mm to account for the space that the heating element occupies within the chamber (see annotated Fig. 11 above); when the heating element is centered between the lower and upper portions, the sheet surfaces are raised half the heating element’s thickness towards the cavity wall. Therefore, 0.075mm of distance would be subtracted to account for the heating element thickness, thus the distance between a heating element surface (i.e., first and second surface/face) and chamber wall (i.e., first and second wall) would be approximately 1.025mm.
Regarding Claim 6, Buchberger further discloses the first wall and the first face are separated by about 1.025mm (Buchberger, Pg. 8, Lines 35-37; Pg. 9, Line 1; See Claim 5 regarding calculation of the separation distance). Buchberger does not disclose that the first wall and first face being separated by 1mm or less.
However, it should be noted that a separation of 1.025mm is close to 1mm and as such, the difference in separation distance can be considered non-critical; additionally, the primary motivation for modifying the dimensions of the chamber is to achieve a specified air velocity that can control the resultant aerosol particle size, where slower velocities can generate larger particle sizes which can improve nicotine delivery and minimize second-hand smoking hazards (Illidge, Paragraph 0079, 0162 and 0237);
Thus, one ordinarily skilled in the art could easily modify the thickness of the heating element while maintaining the width of the aerosol generating cavity to reduce the separation distance from 1.025mm to 1mm or less, so long as the chamber is still capable of delivering the desired air velocity and pressure drop as disclosed by Modified Buchberger to control the aerosol particle size.
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the invention to have optimized the dimensions and separation distance of the chamber and heating element disclosed by Illidge because discovery of an optimal range by routine experimentation has been held to be a prima facie case of obviousness (see MPEP § 2144.05.A).
Regarding Claim 7, Buchberger further discloses the second wall and the second face/surface are separated by 2mm or less (Pg. 8, Lines 35-37; Pg. 9, Line 1; see Claim 5 regarding calculation of the separation distance which is also applicable to the second wall and second face/surface due to symmetry).
Regarding Claim 8, Buchberger further discloses the second wall and the second face are separated by about 1.025mm (Pg. 8, Lines 35-37; Pg. 9, Line 1; See Claim 5 regarding calculation of the separation distance). Buchberger does not disclose that the second wall and second face/surface being separated by 1mm or less.
However, it should be noted that a separation of 1.025mm is close to 1mm and as such, the difference in separation distance can be considered non-critical; additionally, the primary motivation for modifying the dimensions of the chamber is to achieve a specified air velocity that can control the resultant aerosol particle size, where slower velocities can generate larger particle sizes which can improve nicotine delivery and minimize second-hand smoking hazards (Illidge, [0079, 0162, 0237]);
Thus, one ordinarily skilled in the art could easily modify the thickness of the heating element while maintaining the width of the aerosol generating cavity, so long as the chamber is still capable of delivering the desired air velocity and pressure drop as disclosed by Buchberger in view of Illidge to control the aerosol particle size.
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the invention to have optimized the dimensions and separation distance of the chamber and heating element disclosed by Illidge because discovery of an optimal range by routine experimentation has been held to be a prima facie case of obviousness (see MPEP § 2144.05.A).
Regarding Claim 9, Buchberger further discloses the aerosol generating component is formed from a sintered metal fiber material or other porous materials (i.e., open-pored sintered structure/open-pored structure) (Pg. 6, Lines 5-7).
Regarding Claim 10, Buchberger further discloses the aerosol generating component has a thickness of less than 0.6mm (Pg. 6, Lines 18-19; Heating Element 103 has a thickness of 0.15mm).
Regarding Claim 11, Buchberger further discloses the aerosol generating component has a thickness of less than 0.3mm (Pg. 6, Lines 18-19; Heating Element 103 has a thickness of 0.15mm).
Regarding Claim 12, Buchberger further discloses the aerosol generating component has a thickness of about 0.1mm (i.e., ranging from 0.1-0.2mm) (Pg. 6, Lines 18-19; Heating Element 103 has a thickness of 0.15mm).
Regarding Claim 13, Buchberger further discloses article comprising a store (Reservoir 38) for aerosolisable material (Fig. 1; Pg. 3, Lines 26-27).
Regarding Claim 14, Buchberger further discloses the store extending annularly around the aerosol generating chamber (Figs. 6, 9 and 11; Pg. 11, Lines 10-14; Implied as the space is formed from Module 160 and Housing 180 which extends annularly).
Regarding Claim 15, Buchberger further discloses wherein an external wall (Second portion 108) of the aerosol generating chamber forms an internal wall of the store (see annotated Fig. 11; Pg. 11, Lines 10-14).
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It should be noted that Figure 11 shows a cross-sectional view of both the fat portion (108) and thin portion (107) of the carrier module (160) (Pg. 11-12, Lines 30-37 and Lines 1-8). Either portion's surface that faces the outer housing (180) can be considered an external wall.
Regarding Claim 16, Buchberger further discloses the store comprises the aerosolisable material (Pg. 3, Lines 26-27).
Regarding Claim 18, Buchberger in view of Illidge further discloses a non-combustible aerosol provision system, comprising the article of Claim 1 and a device comprising a power source (Battery 54) and a control unit (i.e., circuit board) (Buchberger, Fig. 1; Pg. 3, Lines 36-37).
Regarding Claim 19, Buchberger further discloses the inlet and the outlet are positioned at respective longitudinal ends of the aerosol component (Figs. 1-4; Pg. 4, Lines 21-25);
so that the direct flow path between the inlet and the outlet extends parallel to the aerosol generating component (Figs. 3-4 and 11; Pg. 6, Lines 5-6; Pg. 13, Lines 5-9);
wherein the direct flow path between the inlet and the outlet is arranged to travel directly above or beneath (Figs. 3-6, 11; Pg. 8, Lines 34-37) the portions of the aerosol generating component which are configured to vaporize aerosolisable material at the higher rate (see Fig. 11, Figs. 2-5; Pg. 6, Lines 19-34; portions at the end of each slot have higher vaporization/heating rates and are shown in the figures to be located around the central axis of said aerosol generating component; compare this to Fig. 11 shows that the flow path is constructed above and below the central axis area of said component).
Regarding Claim 20, Buchberger does not explicitly disclose that more than 60% of the direct flow path between the inlet and the outlet is within the area to be tracked. However, it should be noted that the Courts have held that if the prior art structure is capable of performing the intended use, then it meets the claim (see MPEP § 2114).
As previously noted in amended Claim 1 (see Claim 1 rejection, Part II), the flow path being “arranged to track” is considered an intended use of the aerosol generating component. Since Buchberger already discloses all the structural features of the aerosol generating component (see Claim 1 rejection), one ordinarily skilled in the art would reasonably conclude that the flow path and aerosol generating component would function and be capable of directing more than 60% to tracking said area to be tracked (i.e., component portions with higher vaporization rates), as similarly claimed, absent evidence to the contrary.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Buchberger et al (Publication No. GB2533135A, see attached copy) in view of Illidge et al (Publication No. US20220192259A1) as applied to Claim 1 above, and further in view of Force (Publication No. US20170280774A1).
Regarding Claim 17, Buchberger in view of Illidge discloses the article as claimed in Claim 1. Buchberger in view of Illidge does not disclose a pressure drop ranging from 5-120 mmWG across the inlet and outlet of the aerosol generating chamber to achieve said air velocity of Claim 1.
However, it should be noted that the recitation with respect to the intended use of a claimed apparatus does not differentiate said apparatus from the prior art if the prior art teaches all structural limitations of the claim (see MPEP § 2114.II). Buchberger in view of Illidge discloses all structural limitations of the article/device in Claim 1. The further recitation of how said device is intended to be operated within a pressure drop range such that it achieves said air velocity is not a structural limitation that would distinguish the device from the prior art.
Alternatively, Force, directed to an aerosol generating system, discloses the system having a resistance-to-draw (RTD) ranging from 50-150 mmWG which can be achieved by various modifications to the device dimensions or adjusting the size and number of inlets and/or outlets (Force, [0043, 0047]).
It would have been obvious to one ordinarily skilled in the art to have selected the overlapping portion of the ranges disclosed by Force because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness (see MPEP § 2144.05.I).
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to modify the aerosol generating chamber by Buchberger, to have dimensions or a plurality of inlets/outlets that allows an RTD through the chamber to be in a range of 50-150 mmWG as disclosed by Force, as both are directed to an aerosol generating apparatus, where Force teaches the advantage of controlling the air flow by manipulating the dimensions of the device flow path or inlets/outlets to achieve the desired RTD range which helps maintain a desired temperature range near the heating element and also extend the life of the parts (Force, [0044]); this also involves applying a known teaching to a similar device to yield predictable results.
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.
/V.P./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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