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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 09/27/2022 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
Claim 2 is 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.
The term “substantially” in claim 2 is a relative term which renders the claim indefinite. The term “substantially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Examiner suggests removing the term “substantially” from claim 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) 1-2, 6, 9, 29, 35, 38-39, and 44-45 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Thorsen et al (WO 2018054793 A1).
Regarding claim 1, Thorsen discloses an article for use with an electrically operated non-combustible aerosol delivery system, the article comprising:
a generally planar aerosol generating component (Fig. 2 #23 heater arrangement) suspended within an aerosol generating chamber (Fig. 3 #29 hollow interior heating chamber), the aerosol generating chamber (Fig. 3 #29 hollow interior heating chamber) having one or more air inlets (Fig. 2 #61 ventilation paths) and one or more outlets (Fig. 2 #21b tip of mouthpiece assembly) defining a flow path therebetween,
wherein during activation of the aerosol generating component (Fig. 2 #23 heater arrangement) a first temperature profile (Page 4 para. 4 ---"In the example of Figure 13, the temperature, at which the centre of the heater arrangement 23 (and the heating chamber 29) is desired to be, is 250°C.” The target temperature of 250°C is considered a temperature profile.) having a negative gradient (Fig. 13 #137 length temperature gradient indicates the temperature decreasing towards the mouthpiece end of the heater arrangement) is established along a portion of the flow path from the one or more air inlets (Fig. 2 #61 ventilation paths) to the one or more outlets (Fig. 2 #21b tip of mouthpiece assembly).
Regarding claim 2, Thorsen teaches the article as appears above (see the rejection of claim 1), and Thorsen teaches wherein a longitudinal axis of the aerosol generating component (Fig. 2 #23 heater arrangement) is substantially parallel to the flow path (Page 8 para. 8 ---"The primary flow path for the heated volatilised components from the smokable material 21a is axially through the consumable article 21, through the space 2 Id, the filter/cooling element 21c and the further space 21e before entering a user's mouth through the open end of the mouthpiece assembly 21b.”).
Regarding claim 6, Thorsen teaches the article as appears above (see the rejection of claim 1), and Thorsen teaches wherein the negative temperature gradient (Fig. 13 #137 length temperature gradient indicates the temperature decreasing towards the mouthpiece end of the heater arrangement) is established from a peak temperature of above 250 ºC (Page 4 para. 4 ---"The line 138a indicates the maximum acceptable temperature of 255°C, and the line 138b indicates the minimum acceptable temperature of 245°C when the desired temperature is 250°C.”).
Regarding claim 7, Thorsen teaches the article as appears above (see the rejection of claim 6), and Thorsen teaches wherein the peak temperature (Page 4 para. 4 ---"The line 138a indicates the maximum acceptable temperature of 255°C, and the line 138b indicates the minimum acceptable temperature of 245°C when the desired temperature is 250°C.”) is established in proximity to the one or more air inlet(s) (Fig. 2 #61 ventilation paths) of the aerosol-generating chamber.
Regarding claim 9, Thorsen teaches the article as appears above (see the rejection of claim 1), and Thorsen teaches wherein the aerosol generating component (Fig. 2 #23 heater arrangement) is configured to dissipate greater energy at an upstream location relative to a downstream location (The aerosol generating component is surrounded by Fig. 4 #35 chamber which comprises a cooling structure Fig. 5a #35f plurality of fins. Fig. 4 #35 chamber is located upstream and the cooling affect would be greater upstream because of the Fig. 4 #35 chamber.).
Regarding claim 29, Thorsen teaches the article as appears above (see the rejection of claim 1), and Thorsen teaches wherein an upstream portion of the aerosol generating component is configured to have a relatively greater electrical resistance than a corresponding downstream portion (Page 9 para 10 to Page 10 ---" In this example, the first sub-heating zone 222, the second sub-heating zone 224 and the third sub-heating zone 226 of the first heating zone 220 all provide different heating watt densities, with the first sub-heating zone 222 providing a higher watt density than does the second sub-heating zone 224 which provides a higher watt density than does the third sub-heating zone 226.”). Regarding claim 35, Thorsen teaches the article as appears above (see the rejection of claim 1), and Thorsen teaches wherein a second temperature profile is established along a subsequent portion of the flow path (Page 13 para. 4 ---" In examples of the device 1, the controller may be configured to vary the first and second target temperatures for the zones 220 and 230 respectively, independently during a session of use of the device 1. In one example, the controller is configured to control the first and second target temperatures for the zones 220 and 230 such that they are not set to the same temperature or they do not reach the same temperature at substantially any point during a session of use of the device 1.” The target temperature of the second zone is considered to be the second temperature profile.).
Regarding claim 38, Thorsen discloses an aerosol generating component for use with an electrically operated non- combustible aerosol delivery system, the aerosol generating component defining a longitudinal axis and being configured to be heated heterogeneously along the longitudinal axis (Page 11 para. 4 ---" In other words, the temperature sensors 320 and 330 are positioned such that if the first and second control loops were to control the heater arrangement 23 to heat the heating zones 220 and 230 to first and second target temperatures set equal to each other, the temperature between the sensors 320 and 330 would be substantially constant as a function of the length of the heating zones.”).
Regarding claim 39, Thorsen teaches the component as appears above (see the rejection of claim 38), and Thorsen teaches wherein during activation of the aerosol generating component a first temperature profile (Page 4 para. 4 ---"In the example of Figure 13, the temperature, at which the centre of the heater arrangement 23 (and the heating chamber 29) is desired to be, is 250°C.” The target temperature of 250°C is considered a temperature profile.) with a negative gradient (Fig. 13 #137 length temperature gradient indicates the temperature decreasing towards the mouthpiece end of the heater arrangement) is established along a portion of the longitudinal axis of the aerosol generating component.
Regarding claim 44, Thorsen discloses a non-combustible aerosol provision system comprising the article of claim 1 (See the rejection of claim 1),
and a device comprising a power source (Fig. 2 #27 power source) and a control unit (Fig. 2 #25 control circuitry).
Regarding claim 45, Thorsen discloses a non-combustible aerosol provision system comprising the article of claim 38 (See the rejection of claim 38),
and a device comprising a power source (Fig. 2 #27 power source) and a control unit (Fig. 2 #25 control circuitry).
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.
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.
Claim(s) 3-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Thorsen et al (WO 2018054793 A1) as applied to claim 1.
Regarding claim 3, Thorsen teaches the article as appears above (see the rejection of claim 1), but does not teach wherein the negative temperature gradient is established along less than 50% of the flow path.
Nonetheless, Thorsen do(es), however, teach that controlling the temperature profile of the heating zones affects the temperature gradient (Page 11 para. 3-4). Therefore, the temperature profile is recognized as a result-effective variable, i.e. a variable which achieves a recognized result. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977); MPEP 2144.05(II)(B). In this case, the recognized result is that the temperature gradient can be adjusted. Therefore, since the general conditions of the claim, i.e. that the temperature gradient is affected by the temperature profile of the heater, were disclosed in the prior art by Thorsen, it is not inventive to discover the optimum workable range by routine experimentation, and it would have been obvious to one of ordinary skill in the art at the time of the invention to have the negative temperature gradient established along less than 50% of the flow path.
Regarding claim 4, Thorsen teaches the article as appears above (see the rejection of claim 3), but does not teach wherein the negative temperature gradient is established along less than 20% of the flow path.
Nonetheless, Thorsen do(es), however, teach that controlling the temperature profile of the heating zones affects the temperature gradient (Page 11 para. 3-4). Therefore, the temperature profile is recognized as a result-effective variable, i.e. a variable which achieves a recognized result. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977); MPEP 2144.05(II)(B). In this case, the recognized result is that the temperature gradient can be adjusted. Therefore, since the general conditions of the claim, i.e. that the temperature gradient is affected by the temperature profile of the heater, were disclosed in the prior art by Thorsen, it is not inventive to discover the optimum workable range by routine experimentation, and it would have been obvious to one of ordinary skill in the art at the time of the invention to have the negative temperature gradient being established along less than 20% of the flow path.
Regarding claim 5, Thorsen teaches the article as appears above (see the rejection of claim 1), but does not teach wherein the negative temperature gradient is established along a first 5% of the flow path.
Nonetheless, Thorsen do(es), however, teach that controlling the temperature profile of the heating zones affects the temperature gradient (Page 11 para. 3-4). Therefore, the temperature profile is recognized as a result-effective variable, i.e. a variable which achieves a recognized result. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977); MPEP 2144.05(II)(B). In this case, the recognized result is that the temperature gradient can be adjusted. Therefore, since the general conditions of the claim, i.e. that the temperature gradient is affected by the temperature profile of the heater, were disclosed in the prior art by Thorsen, it is not inventive to discover the optimum workable range by routine experimentation, and it would have been obvious to one of ordinary skill in the art at the time of the invention to have the negative temperature gradient being established along a first 5% of the flow path.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Thorsen et al (WO 2018054793 A1) as applied to claim 7.
Regarding claim 8, Thorsen teaches the article as appears above (see the rejection of claim 7), but does not teach wherein the peak temperature is established within 20% of an opening of the one or more air inlets into the aerosol generating chamber.
Nonetheless, Thorsen do(es), however, teach that controlling the temperature profile of the individually controlled heating zones affects the peak temperature at any position in any zone (Page 11 para. 1; Page 9 para. 9; Heating zone 220 is closest to the air inlets.). Therefore, the temperature profile of the individually controlled heating zones is recognized as a result-effective variable, i.e. a variable which achieves a recognized result. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977); MPEP 2144.05(II)(B). In this case, the recognized result is that the temperature gradient can be adjusted. Therefore, since the general conditions of the claim, i.e. that the heating zones can be controlled individually, were disclosed in the prior art by Thorsen, it is not inventive to discover the optimum workable range by routine experimentation, and it would have been obvious to one of ordinary skill in the art at the time of the invention to have the peak temperature being established within 20% of an opening of the one or more air inlets into the aerosol generating chamber.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Thorsen et al (WO 2018054793 A1) as applied to claim 9, in view of Nguyen et al (US 2004/0129793).
Regarding claim 10, Thorsen teaches the article as appears above (see the rejection of claim 9), but does not teach wherein the aerosol generating component is configured with a capillary structure at an upstream portion which has a capillarity inferior in terms of feed rate compared to a capillary structure at a corresponding downstream portion.
However, Nguyen in the same field of endeavor being aerosol generating devices teaches wherein the aerosol generating component is configured with a capillary structure at an upstream portion which has a capillarity inferior in terms of feed rate compared to a capillary structure at a corresponding downstream portion ([0040] lines 1-16 ---" The capillary passage can have more than two sections having different cross-sectional areas from each other (not shown), i.e, more than one section that acts as an outlet section relative to the adjacent upstream section as the fluid moves through the capillary passage. For example, the capillary passage can include three sections having different cross-sectional areas from each other. In such embodiments, the cross-sectional area of the capillary passage can decrease or increase in size from the first section to the second section, and decrease or increase in size from the second section to the third section, i.e., the exit outlet section. Accordingly, the velocity of the fluid is changed (increased or decreased) as the fluid moves from the first section into the second section, and then changed again (increased or decreased) as it moves from the second section into the third section.”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the article of Thorsen by incorporating the capillary structure as taught by Nguyen for the benefit of controlling the exit velocity of vapor. (Nguyen [0040])
Claim(s) 30-34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Thorsen et al (WO 2018054793 A1) as applied to claim 1, in view of Monsees et al (US 10,045,567).
Regarding claim 30, Thorsen teaches the article as appears above (see the rejection of claim 1), but does not teach wherein the aerosol generating component further comprises one or more apertures or slots extending from one surface of the planar aerosol generating component to an opposite surface.
Nonetheless, Monsees teaches wherein the aerosol generating component further comprises one or more apertures (Fig. 10A 50 air inlet opening) or slots extending from one surface of the planar aerosol generating component to an opposite surface.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the article of Thorsen by incorporating the one or more apertures as taught by Monsees for the benefit of introducing air into the heating chamber for producing vapor.
Regarding claim 31, Thorsen in view of Monsees teaches the article as appears above (see the rejection of claim 30), and Monsees teaches wherein the one or more apertures (Fig. 10A 50 air inlet opening) or slots originate from a periphery of the aerosol generating component (Shown in Fig. 10A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the article of Thorsen by incorporating the one or more apertures as taught by Monsees for the benefit of introducing air into the heating chamber for producing vapor.
Regarding claim 32, Thorsen in view of Monsees teaches the article as appears above (see the rejection of claim 31), and Monsees teaches wherein the one or more apertures (Fig. 10A 50 air inlet opening) or slots are arranged perpendicularly to a longitudinal extent of the aerosol generating component such that a plurality of portions extending perpendicularly to the longitudinal extent of the aerosol generating component are formed (Shown in Fig. 10A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the article of Thorsen by incorporating the one or more apertures as taught by Monsees for the benefit of introducing air into the heating chamber for producing vapor.
Regarding claim 33, Thorsen in view of Monsees teaches the article as appears above (see the rejection of claim 31), and Monsees teaches wherein a width of an upstream portion (Fig. 4A #423 airflow channel) is less than a width of a subsequent downstream portion (Fig. 4A #421 air inlet and #404 oven region).
Regarding claim 34, Thorsen in view of Monsees teaches the article as appears above (see the rejection of claim 31), but does not teach wherein a ratio of the width of the upstream portion to the subsequent downstream portion is less than 1, but not less than 0.5.
Nonetheless, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have a ratio of the width of the upstream portion to the subsequent downstream portion being less than 1, but not less than 0.5, since it has been held by the courts that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device, and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984),
Claim(s) 36-37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Thorsen et al (WO 2018054793 A1) as applied to claim 35.
Regarding claim 36, Thorsen teaches the article as appears above (see the rejection of claim 35), but does not teach wherein the second temperature profile has a negative gradient which is smaller than the first temperature profile.
Nonetheless, Thorsen do(es), however, teach that controlling the temperature profile of the heating zones affects the temperature gradient (Page 11 para. 3-4). Therefore, the temperature profile is recognized as a result-effective variable, i.e. a variable which achieves a recognized result. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977); MPEP 2144.05(II)(B). In this case, the recognized result is that the temperature gradient can be adjusted. Therefore, since the general conditions of the claim, i.e. that the temperature gradient is affected by the temperature profile of the heater, were disclosed in the prior art by Thorsen, it is not inventive to discover the optimum workable range by routine experimentation, and it would have been obvious to one of ordinary skill in the art at the time of the invention to have the second temperature profile having a negative gradient which is smaller than the first temperature profile.
Regarding claim 37, Thorsen teaches the article as appears above (see the rejection of claim 35), but does not teach wherein the second temperature profile has a negative gradient which is greater than the first temperature profile.
Nonetheless, Thorsen do(es), however, teach that controlling the temperature profile of the heating zones affects the temperature gradient (Page 11 para. 3-4). Therefore, the temperature profile is recognized as a result-effective variable, i.e. a variable which achieves a recognized result. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977); MPEP 2144.05(II)(B). In this case, the recognized result is that the temperature gradient can be adjusted. Therefore, since the general conditions of the claim, i.e. that the temperature gradient is affected by the temperature profile of the heater, were disclosed in the prior art by Thorsen, it is not inventive to discover the optimum workable range by routine experimentation, and it would have been obvious to one of ordinary skill in the art at the time of the invention to have the second temperature profile having a negative gradient which is greater than the first temperature profile.
Claim(s) 40-42 is/are rejected under 35 U.S.C. 103 as being unpatentable over Thorsen et al (WO 2018054793 A1) as applied to claim 39.
Regarding claim 40, Thorsen teaches the component as appears above (see the rejection of claim 39), but does not teach wherein the negative gradient is established along less than 50% of the longitudinal axis of the aerosol generating component.
Nonetheless, Thorsen do(es), however, teach that controlling the temperature profile of the heating zones affects the temperature gradient (Page 11 para. 3-4). Therefore, the temperature profile is recognized as a result-effective variable, i.e. a variable which achieves a recognized result. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977); MPEP 2144.05(II)(B). In this case, the recognized result is that the temperature gradient can be adjusted. Therefore, since the general conditions of the claim, i.e. that the temperature gradient is affected by the temperature profile of the heater, were disclosed in the prior art by Thorsen, it is not inventive to discover the optimum workable range by routine experimentation, and it would have been obvious to one of ordinary skill in the art at the time of the invention to have the negative gradient being established along less than 50% of the longitudinal axis of the aerosol generating component.
Regarding claim 41, Thorsen teaches the component e as appears above (see the rejection of claim 40), but does not teach wherein the negative gradient is established along less than 20% of the longitudinal axis of the aerosol generating component.
Nonetheless, Thorsen do(es), however, teach that controlling the temperature profile of the heating zones affects the temperature gradient (Page 11 para. 3-4). Therefore, the temperature profile is recognized as a result-effective variable, i.e. a variable which achieves a recognized result. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977); MPEP 2144.05(II)(B). In this case, the recognized result is that the temperature gradient can be adjusted. Therefore, since the general conditions of the claim, i.e. that the temperature gradient is affected by the temperature profile of the heater, were disclosed in the prior art by Thorsen, it is not inventive to discover the optimum workable range by routine experimentation, and it would have been obvious to one of ordinary skill in the art at the time of the invention to have the negative gradient being established along less than 20% of the longitudinal axis of the aerosol generating component.
Regarding claim 42, Thorsen teaches the component as appears above (see the rejection of claim 39), but does not teach wherein the negative gradient is established along a first 5% of the longitudinal axis of the aerosol generating component.
Nonetheless, Thorsen do(es), however, teach that controlling the temperature profile of the heating zones affects the temperature gradient (Page 11 para. 3-4). Therefore, the temperature profile is recognized as a result-effective variable, i.e. a variable which achieves a recognized result. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977); MPEP 2144.05(II)(B). In this case, the recognized result is that the temperature gradient can be adjusted. Therefore, since the general conditions of the claim, i.e. that the temperature gradient is affected by the temperature profile of the heater, were disclosed in the prior art by Thorsen, it is not inventive to discover the optimum workable range by routine experimentation, and it would have been obvious to one of ordinary skill in the art at the time of the invention to have the negative gradient being established along a first 5% of the longitudinal axis of the aerosol generating component.
Claim(s) 43 is/are rejected under 35 U.S.C. 103 as being unpatentable over Thorsen et al (WO 2018054793 A1) as applied to claim 38, in view of Buchberger et al (WO 2018211252 A1).
Regarding claim 43, Thorsen teaches the component as appears above (see the rejection of claim 38), but does not teach wherein the aerosol generating component is formed from a woven or weave structure, a mesh structure, a fabric structure, an open-pored fiber structure, an open-pored sintered structure, an open-pored foam, or an open-pored deposition structure.
Nonetheless, Buchberger in the same field of endeavor being aerosol generating devices teaches wherein the aerosol generating component is formed from a woven or weave structure, a mesh structure (Page 2 Background para. 3 --- As an alternative, other devices employ a heating element in the form of a porous conductive sheet such as a metal mesh.”), a fabric structure, an open-pored fiber structure, an open-pored sintered structure, an open-pored foam, or an open-pored deposition structure. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the aerosol generating component of Thorsen by incorporating the metal mesh as taught by Buchberger for the benefit of providing a heater having a wicking function as well as a heating function. (Buchberger Page 2 Background para. 3)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOE E MILLS JR. whose telephone number is (571)272-8449. The examiner can normally be reached M-F 8-5.
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/JOE E MILLS JR./Examiner, Art Unit 3761