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 .
Claim Status
Applicant’s arguments, filed on 10/29/2025, (“Remarks”) were in response to the Second Non-Final Rejection mailed on 07/29/2025 (“Second Non-Final Rejection”).
Claim(s) 2 is/are canceled.
Therefore, claims 1 and 3–24 are pending and addressed below.
Response to Arguments
Claim Objection(s)
The Second Non-Final Rejection objected to claim(s) 1 because of various informalities.
Examiner would like to thank Applicant for amending the claim(s) to provide greater consistency. The objection(s) referenced above is/are withdrawn.
Claim Rejections - 35 USC § 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph
Claim(s) 3, 7, 9, 12, 15, and 17–18 was/were rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Examiner would like to thank Applicant for amending the claim(s) at issue. Many of rejection(s) made under 35 U.S.C. 112(b) in the Second Non-Final Rejection is/are moot and withdrawn.
Claim Rejections - Double Patenting
Claims 1–8, 10 and 16-24 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1, 13, 15, 18-19, 22-30 and 32 of co-pending Application No. 17/907,486.
Applicant’s Remarks on pages 6–7 have been fully considered, but are not persuasive for the reasons set out in the following paragraphs.
Applicant argues:
While US 17/907,486 and the pending application address similar technical challenges, they do not have patentably indistinct claims. For example, the pending claims recite that the "material is fed directly to substantially all of the periphery of the aerosol generating component," while US 17/907,486 recites vaporizing the aerosolizable material "at a greater rate of vaporization than other areas of the aerosol generating component having a less rate of vaporization." The Office Action asserts that claim 19 of US 17/907,486 teaches the feature of claim 1 above, but Applicant respectfully disagrees. Rather, claim 19 recites that a periphery of the aerosol generating component extends into the mouth section, which is not the same conceptually. These differences would be understood to be significant to a person having ordinary skill in the art, and because the claims are not patentably indistinct Applicant respectfully submits that the rejection for double patenting should be withdrawn.
Remarks at 6–7. Respectfully, this is not persuasive because claim 15 in 17/907,486 claim set filed on 12/22/2025 recites “wherein the at least one feed aperture is located at a boundary of the portions having a greater and a lesser rate of vaporization.” This arrives at “a periphery of the aerosol generating component is coupled to a feed aperture such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component” because placing the feed apertures at the boundary between the two portions will arrive at limitations at issue even if the portions having a greater rate of vaporizations are located more inwardly than on the periphery.
Claim Rejections - 35 USC § 102
Claim(s) 1, 3–6, 8–9, and 14–24 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by WO 2018211252 A1 (“BUCHBERGER”). Claim(s) 1–11, and 13–23 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by 20190216135 (“GUO”) (of record).
Applicant’s Remarks on pages 8–12 have been fully considered, but are not persuasive for the reasons set out in the following paragraphs.
With reference to the previous application of BUCHBEGER Applicant states:
The Examiner appears to consider that either "a series of slots, tubes or channels between the reservoir (Fig. 7, 3) and the vapor generating component" or the "general gap 200 between upper/lower carrier components" corresponds to "a feed aperture" and so anticipate the feature "wherein the periphery of the aerosol generating component is coupled to a feed aperture such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component."
Remarks at 8. For the sake of clarity, BUCHBERGER discloses two different types of feed apertures which work together to feed liquid (3) from the reservoir (Fig. 6) to the aerosol generating device (103). First, is a series of slots, tubes or channels between the reservoir (Fig. 7, 3) and the vapor generating component (103; Page 5, Lines 28–35). Second, is a general gap (200) between upper/lower carrier components (Figs. 4–9, 101/102) and surrounding the aerosol generating component (103) that allows fluid communication from the reservoir to the aerosol generating device (Page 11, Line 27– Page 12, Line 2) and thermal expansion and contraction of the heating element during use (Page 11, Lines 25–26). Each of these anticipate “wherein the periphery of the aerosol generating component is coupled to a feed aperture such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component.”
Applicant continues:
Buchberger does not disclose "a periphery of the aerosol generating component is coupled to a feed aperture such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component." This is because in Buchberger aerosolisable material is only fed to the two sides of the heating element 103. This is clear from page 11 lines 31 to 35 of Buchberger which recites that gap 200 is in fluid communication with a reservoir and hence provides capillary channels which extend along both sides of the heating element 103 and through which source liquid may be drawn from the reservoir to the heating element 103 where it enters pores of the heating element 103. Therefore, no aerosolisable material is fed to the two short edges of the heating element 103.
Remarks at 8–9. Examiner respectfully disagrees. Even if BUCHBERGER discloses aerosolisable material is only fed to the two sides of the heating element 103 and not the “two short edges of the heating element 103” one of ordinary skill in the art understands that the feeding aerosolizable material to the substantially longer edges of heating element 103 reads on broadest reasonable interpretation of “a periphery of the aerosol generating component is coupled to a feed aperture such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component.” Please see reproduction of various aerosol generating components (103) where the longer edges constitutes substantially all of the periphery of the aerosol generating component:
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BUCHBERGER, Figs. 3–4 and 17–20. One of ordinary skill in the art understands that feeding aerosolizable material to the longer edges of the above heating elements arrives at “wherein a periphery of the aerosol generating component is coupled to a feed aperture such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component.”
Applicant’s reliance on page 20 lines 20–23 of the original specification, see Remarks at 9, supports maintaining the rejection in view of BUCHBERGER. As explained by Applicant, page 20 lines 20–23 of the pending application discloses “[a]s a result of being arranged to receive aerosolisable material around the majority of its periphery, it is possible to increase the feeding of aerosolisable material to the heating element 103a relative to other heating elements.” Remarks at 8 (citing page 20 lines 20–23 of the pending application). BUCHBERGER’s arrangement also receives aerosolisable material around the majority of its periphery, i.e., along the much longer sides of 103. Accordingly, one of ordinary skill in the art understands that BUCHBERGER’s disclosure of feeding aerosolizable material along the majority of the periphery to the longer edges of the heating element 103 arrives at “wherein a periphery of the aerosol generating component is coupled to a feed aperture such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component.”
With reference to the previous application of GOU, Applicant argues:
The atomiser comprises a heating body 4, a liquid supply hole 21, a liquid storage cavity 26, and a porous material 37. In use, liquid flows from the cavity 26 through the hole 21 onto the porous material 37, and liquid in the porous material 37 contacts an upper surface of the heating body 4. As the porous material is arranged between the liquid supply hole 21 and the heating body 4, Guo does not disclose the direct feeding of liquid from a feed aperture to the periphery of the heating body 4. Moreover, Guo does not disclose the extent to which liquid is fed to the periphery of the heating body 4.
Accordingly, Guo fails to disclose "the periphery of the aerosol generating component is coupled to one or more feed apertures such that liquid aerosolisable material is fed directly to substantially all of the periphery" and it is respectfully submitted that the rejections based on Guo should also be withdrawn.
Remarks at 10. Examiner respectfully disagrees. GUO further discloses:
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wherein the periphery (Figure 10, 4 under 37) of the aerosol generating component is coupled to a feed aperture (This is met by 1) item 37 [0085]; 2) the space 37 takes up; or 3) the liquid supply hole 21 labeled in Fig. 8, illustrated but not labeled as part of 38 in Fig. 12, and explained in [0086] as “at least one liquid supply hole 21 which communicates with the liquid guide structure is formed in the upper end of the elastic adjusting sleeve 38”) such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component ([0087]). One of ordinary skill in the art understands that the above anticipates “the periphery of the aerosol generating component is coupled to one or more feed apertures such that liquid aerosolisable material is fed directly to substantially all of the periphery.”
Therefore, the above referenced rejection(s) in the Second Non-Final Rejection is/are maintained.
Claim Rejections - 35 USC § 103
Applicant’s Remarks on page 10–11 have been fully considered, but are not persuasive for the reasons set out in the following paragraphs. Applicant generally alleges that one of ordinary skill in the art would not use the disclosures of prior art cited to arrive at the alleged deficiencies discussed at length above. As demonstrated above, no deficiencies exist. Accordingly, Applicant’s arguments are not persuasive.
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.
Claims 7 and 12, are 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.
Claim 7 recites “the capillary gap comprises multiple capillary gaps such that the capillary gap extends intermittently around the aerosol generating chamber.” At first, the claim requires “the capillary gap comprises multiple capillary gaps,” which one of ordinary skill in the art understands results in a plurality of capillary gaps. Then, the claim recites “such that the capillary gap extends intermittently around the aerosol generating chamber.” One of ordinary skill in the art is unable to ascertain which of the multiple capillary gaps the second recitation of “the capillary” is intended to reference7.
Claim 12 continues to recite “the thickness” in line 1. Claim 12’s recitation of “the thickness” lacks antecedent basis because a frame may have more than one thickness over its length.
For the purposes of searching and throughout the remainder of this action, Examiner will assume claim 12 recites “[[the]a thickness” in line 2.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 3–6, 8–9, and 14–24 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by WO 2018211252 A1 (“BUCHBERGER”).
As to claim 1, BUCHBERGER discloses an article for use with an electrically operated non-combustible aerosol delivery system (Figs. 5–6), the article comprising a generally planar aerosol generating component (103) suspended (Figs. 5 and 21 illustrates those 103 spans the entire length of the chamber) within an aerosol generating chamber (120).
BUCHBERGER discloses two different types of feed apertures which work together to feed liquid (3) from the reservoir (Fig. 6) to the aerosol generating device (103). First, is a series of slots, tubes or channels between the reservoir (Fig. 7, 3) and the vapor generating component (103; Page 5, Lines 28–35). Second, is a general gap (200) between upper/lower carrier components (Figs. 4–9, 101/102) and surrounding the aerosol generating component (103) that allows fluid communication from the reservoir to the aerosol generating device (Page 11, Line 27– Page 12, Line 2) and thermal expansion and contraction of the heating element during use (Page 11, Lines 25–26). Each of these anticipate “wherein the periphery of the aerosol generating component is coupled to a feed aperture such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component.”
As to claim 3, BUCHBERGER discloses the article according to claim 1.
The two different types of feed apertures cited in claim 1 both feed aerosolizable material directly to the periphery of the aerosol generating component (see rejection above). BUCHBERGER also discloses that that the aerosol generating component is made from a wicking material that directly wicks the aerosolizable material from the reservoir to enterity of the aerosol generating component (Page 5, Lines 19–35). Accordingly, BUCHBERGER anticipates “wherein the periphery of the aerosol generating component is coupled to a feed aperture such that aerosolizable material is fed directly to the entirety of the periphery of the aerosol generating component.”
As to claim 4, BUCHBERGER discloses the article according to claim 1.
The two feed apertures cited in claim 1 both from a capillary gaps (see citations in claim 1).
As to claims 5–6, BUCHBERGER discloses the article according to claim 4.
The second capillary gap cited in claim 1, i.e., the capillary gap (200), extends around the aerosol generating chamber in a plane parallel to the plane of the aerosol generating component (Page 11, Line 27– Page 12, Line 2). Since this gap (200) surrounds the aerosol generating component within the chamber it is also considered to meet the broadest reasonable interpretation of claim 6’s “wherein the capillary gap extends around at least 90% of the perimeter of the aerosol generating component.”
As to claim 8, BUCHBERGER discloses the article according to claim 5. The second capillary gap cited in claim 1, i.e., the capillary gap (200), gap extends continuously around the aerosol generating chamber (Figs. 5–6, 200; Page 11, Line 27– Page 12, Line 2).
As to claim 9, BUCHBERGER discloses the article according to claim 1, The first capillary gap cited in claim 1, i.e., those from the reservoir to gap 200, anticipate wherein the capillary gap is formed in the wall of the aerosol generating chamber (Page 5, Lines 28–35).
As to claims 14–15, BUCHBERGER discloses the article according to claim 1.
BUCHBERGER discloses that the aerosol generating component is placed within a gap between the top and bottom structures illustrated in Figs. 4–6 and that the gap is sufficiently large to allow for thermal expansion of the aerosol generating component and capillary flow of liquid from the reservoir into the aerosol generating component from above/below (Page 5, Lines 25–35 and Page 11, Line 10– Page 12, Line 2).
This structure meets the broadest reasonable interpretation of wherein the feed aperture is disposed out of the plane of the aerosol generating component (claim 14) because the feed aperture is wider than the aerosol generating component and wherein the feed apertures comprises multiple feed apertures disposed out of plane of the aerosol generating component (claim 15) because at least some are associated with the top/bottom sandwiching structure and/or one side or the other of the aerosol generating device (Page 5, Lines 25–35 and Page 11, Line 10– Page 12, Line 2).
As to claim 16, BUCHBERGER discloses the article according to claim 1, wherein the aerosol generating chamber comprises at least one air inlet and at least one air outlet (see flow of air A in Fig. 22).
As to claim 17, BUCHBERGER discloses the article according to claim 1, wherein the at least one air inlet and the at least one air outlet are aligned substantially parallel to the plane of the aerosol generating component (see flow of air A in Fig. 22).
As to claim 18, BUCHBERGER discloses the article according to claim 1, wherein the at least one air inlet and the at least one air outlet are aligned substantially transverse to the plane of the aerosol generating component (see downward arrows above 134 in Fig. 22).
As to claim 19, BUCHBERGER discloses the article according to claim 1, wherein the article comprises a store (Fig. 7, 3) for aerosolizable material (Page 12, Lines 14–18).
As to claim 20, BUCHBERGER discloses the article according to claim 19, wherein the store extends annularly around the aerosol generating chamber (Figs. 5–7, Page 12, Lines 14–18).
As to claim 21, BUCHBERGER discloses the article according to claim 20, wherein an external wall of the aerosol generating chamber forms an internal wall of the store (Fig. 7, Page 12, Lines 14–18).
As to claim 22, BUCHBERGER discloses the article according to claim 19, wherein the store comprises aerosolizable material (Page 4, Lines 31–36; Fig. 7, Page 12, Lines 14–18).
As to claim 23, BUCHBERGER discloses the article according to claim 1, wherein the aerosol generating component is formed from a woven or weave structure, mesh structure, fabric structure, open- pored fiber structure, open-pored sintered structure, open-pored foam or open-pored deposition structure (Page 5, Lines: 19–35).
As to claim 24, BUCHBERGER discloses the a non-combustible aerosol provision system (Figure 1), comprising the article of claim 1 (rejection of claim 1) and a device comprising a power source (5) and a control unit (28).
Claim(s) 1–11, and 13–23 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by 20190216135 (“GUO”) (of record).
As to claim 1, GUO discloses an article for use with an electrically operated non-combustible aerosol delivery system,
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the article comprising a generally planar aerosol generating component (4; [0063]) suspended within an aerosol generating chamber (32).
GUO further discloses:
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wherein the periphery (Figure 10, 4 under 37) of the aerosol generating component is coupled to a feed aperture (This is met by 1) item 37 [0085]; 2) the space 37 takes up; or 3) the liquid supply hole 21 labeled in Fig. 8, illustrated but not labeled as part of 38 in Fig. 12, and explained in [0086] as “at least one liquid supply hole 21 which communicates with the liquid guide structure is formed in the upper end of the elastic adjusting sleeve 38”) such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component ([0087]).
As to claim 3, GUO discloses the article according to claim 1, wherein the periphery of the aerosol generating component is coupled to a feed aperture (37 or the space 37 takes up or the liquid supply hole [0085]) such that aerosolizable material is fed directly to the entirety of the periphery of the aerosol generating component ([0087]).
As to claim 4, GUO discloses the article according to claim 1, wherein the at least one feed aperture forms a capillary gap ([0085–87]).
As to claim 5, GUO discloses the article according to claim 4, wherein the capillary gap extends around the aerosol generating chamber in a plane parallel to the plane of the aerosol generating component (Fig. 10).
As to claim 6, GUO discloses the article according to claim 5, wherein the capillary gap extends around at least 90% of the perimeter of the aerosol generating component (Fig. 10).
As to claim 7, GUO discloses the article according to claim 5.
GUO further discloses a plurality of capillary gaps (21 in 38; [0086]) surrounding the aerosol generating chamber [0085–86]) intermittently. The cross-sections of these openings (21) will be parallel to the plane of the aerosol generating component (the other side of these openings are illustrated as intermittent circles at the top of 38 in Fig. 10 but are not labeled).
Accordingly, GUO anticipates “wherein the capillary gap comprises multiple capillary gaps sch that the capillary gap extends intermittently around the aerosol generating chamber.”
As to claim 8, GUO discloses the article according to claim 5, wherein the capillary gap extends continuously around the aerosol generating chamber (Fig. 10, [0087–89]).
As to claim 9, GUO discloses the article according to claim 1, wherein the capillary gap is formed in the a of the aerosol generating chamber (Fig. 8).
As to claim 10, GUO discloses the article according to claim 1, wherein the capillary gap is formed by a capillary frame (37/2) located within the aerosol generating chamber ([0087]).
As to claim 11, GUO discloses the article according to claim 10, wherein the frame comprises an upper capillary frame element (37) and a lower capillary frame element (2), which together sandwich the aerosol generating component (Fig. 10 and 12; [0086]).
As to claim 13, GUO discloses the article according to s claim 10, wherein the frame comprises an edge profile in the shape of an aerofoil (Fig. 10) .
As to claim 14, GUO discloses the article according to claim 1, wherein the at least one feed aperture is disposed out of the plane of the aerosol generating component (21; [0086–87] and/or the porous channels within 37).
As to claim 15, GUO discloses the article according to claim 14, wherein the feed aperture comprises multiple feed apertures, and wherein the (at least one of the porous channels within 37).
As to claim 16, GUO discloses the article according to claim 1, wherein the aerosol generating chamber comprises at least one air inlet and at least one air outlet (14/1; [0061]).
As to claim 17, GUO discloses the article according to claim 1, wherein the at least one air inlet and at least one air outlet are aligned substantially parallel to the plane of the aerosol generating component (the cross section of air inlet near “local part A” in Fig. 9 is parallel to the plane of the aerosol generating component. The same is true for the cross section of the mouthpiece).
As to claim 18, GUO discloses the article according to claim 1, wherein the at least one air inlet (at 14 in Fig. 8) and at least one air outlet (along the length of in Fig. 8) are aligned substantially transverse to the plane of the aerosol generating component (Fig. 8).
As to claim 19, GUO discloses the article according to claim 1, wherein the article comprises a store for aerosolizable material (26; [0062]).
As to claim 20, GUO discloses the article according to claim 19, wherein the store extends annularly around the aerosol generating chamber (Fig. 8).
As to claim 21, GUO discloses the article according to claim 20, wherein an external wall of the aerosol generating chamber forms an internal wall of the store (Fig. 8)
As to claim 22, GUO discloses the article according to claim 19, wherein the store comprises aerosolizable material ([0062]).
As to claim 23, GUO discloses the article according to claim 1, wherein the aerosol generating component is formed from a woven or weave structure, mesh structure, fabric structure, open- pored fiber structure, open-pored sintered structure, open-pored foam or open-pored deposition structure ([0037]).
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.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over GUO.
As to claim 12, GUO discloses the article according to claim 10.
GUO appears to illustrate a frame (Fig. 10, 2/37) with a thickness that is very thin compared to the height of the aerosol generating chamber (32). Please see reproduction below:
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However, GUO fails to explicitly disclose the frame occupies less than 10% of the height of the aerosol generating chamber.
It would have been obvious to one of ordinary skill in the art as of the effective filing date to arrive at the frame occupies less than 10% of the height of the aerosol generating chamber when attempting to arrive at the teachings of GUO’s Figs. 8 and 10 because these Figures appear to illustrate a frame which is 5% of the height of the aersol generating chamber. Additionally or alternatively, it would have been obvious to one of ordinary skill in the art as of the effective filing date to arrive at the limitations at issue as an obvious change in shape because extending the height of the aerosol generating chamber would not result in a device that would perform materially differently than that disclosure by GUO. MPEP 2144.04(IV)(A).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 3–8, 10, and 16–24 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable in view of claims 1, 13, 15, 18–19, 22–30, and 32 of copending Application No. 17907486 (“Reference Application”) in the claim set filed on 12/22/2025 (“Reference Application’s Claim Set”).
Although the claims at issue are not identical, they are not patentably distinct from each other because they would have been obvious in view of the similar subject matter claimed in the following locations:
As to claim 1, Reference Application’s Claim Set claims or makes obvious to claim an article for use with an electrically operated non-combustible aerosol delivery system (Claim 1), the article comprising a generally planar aerosol generating component suspended within an aerosol wherein the periphery of the aerosol generating component is coupled to a feed aperture (Claims 15 and 18) such that aerosolizable material is fed directly to substantially all of the periphery of the aerosol generating component (claim 19).
As to claim 3, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 1, wherein the periphery of the aerosol generating component is coupled to a feed aperture such that aerosolizable material is fed directly to the entirety of the periphery of the aerosol generating component (claims 15 and 18–19).
As to claim 4, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 1, wherein the at least one feed aperture forms a capillary gap (claim 18).
As to claim 5, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 4, wherein the capillary gap extends around the aerosol generating chamber in a plane parallel to the plane of the aerosol generating component (claim 23).
As to claim 6, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 5, wherein the capillary gap extends around at least 90% of the perimeter of the aerosol generating component (claim 23 captures more than 90%).
As to claim 7, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 5, wherein the capillary gap extends intermittently around the aerosol generating chamber (claim 15).
As to claim 8, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 5, wherein the capillary gap extends continuously around the aerosol generating chamber (claim 23).
As to claim 10, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 1, wherein the capillary gap is formed by a capillary frame located within the aerosol generating chamber (claim 22).
As to claim 16, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 1, wherein the aerosol generating chamber comprises at least one air inlet and at least one air outlet (claim 24/26).
As to claim 17, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 1, wherein the air inlet and air outlet are aligned substantially parallel to the plane of the aerosol generating component (Claim 24).
As to claim 18, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 1, wherein the air inlet and air outlet are aligned substantially transverse to the plane of the aerosol generating component (Claim 26).
As to claim 19, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 1, wherein the article comprises a store for aerosolizable material (Claim 27).
As to claim 20, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 19, wherein the store extends annularly around the aerosol generating chamber (Claim 28).
As to claim 21, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 20, wherein an external wall of the aerosol generating chamber forms an internal wall of the store (Claim 29).
As to claim 22, Reference Application’s Claim Set claims or makes obvious to claim the article according to claim 19, wherein the store comprises aerosolizable material (Claim 30).
As to claim 24, Reference Application’s Claim Set claims or makes obvious to claim the a non-combustible aerosol provision system, comprising the article of claim 1 and a device comprising a power source and a control unit (claim 32).
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 MANLEY L CUMMINS IV whose telephone number is (571)272-1060. The examiner can normally be reached Monday-Friday 9:30 a.m. - 6:00 p.m. (CST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H. Wilson can be reached at (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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/MANLEY L CUMMINS IV/Primary Examiner, Art Unit 1747