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 .
Continued Examination
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 02/17/2026 has been entered.
Claim Status
Applicant’s arguments, filed on 02/17/2026, (“Remarks”) were in response to the Final Rejection mailed on 11/17/2025 (“Final Rejection”).
Claim(s) 2, 12, 14, and 18 is/are canceled.
Claims(s) 25–26 is/are new.
Claim(s) 1, 3–11, 13, 15–17, and 19–26 is/are pending. Of the pending claims, claim(s) 24 is/are currently withdrawn because they encompass other invention(s) not elected by Applicant on 12/12/2024.
Therefore, claim(s) 1, 3–11, 13, 15–17, 19–23, and 25–26 are addressed below.
Response to Arguments
Claim Objections
Claims 5, 7, and 14 were objected for various inadvertent drafting errors.
The above objections are moot and withdrawn.
Claim Rejections - 35 USC § 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph
Claim(s) 1 and 3–23 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.
Applicant canceled claim(s) 2, 12, 14, and 18 in the amended claim set filed on 02/17/2026.
Examiner would like to thank Applicant for amending the claim(s) at issue.
A few of the rejections(s) made under 35 U.S.C. 112(b) in the Final Rejection is/are moot and withdrawn.
However, claim 1 continues to recite “the flow path being arranged to track the one or more first portions configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component.” Applicant the amendment to claim 1 resolves the indefinite issue in the previous rejection. Remarks at 6–7. Examiner respectfully disagrees. (As a brief aside, Examiner notes that the amended recitation of “wherein the aperture width is smaller than a width of the one or more first portions of the aerosol generating component configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component” is also indefinite for similar reasons, which are explained in relevant rejection below.)
Before Addressing Applicant’s Remarks directly, Examiner wishes to place the limitation at issue within context of Applicant’s Substitute Specification – Clean Copy filed on 09/27/20222 (“Specification”). This concept is best illustrated in ROTHWELL WO 2018142115’s Fig. 7, which is reproduced below:
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One of ordinary skill in the art understands that the location/width of the one or more first portions (glowing portion above) expands or contracts depending on how much energy is applied to each end of the aerosol generating component. The Final Rejection explained:
Since the width of Applicant’s one or more first portions is variable, i.e., changes depending on the amount current flowing through the structure, one of ordinary skill in the art is not able to use the first portions as a definitive measurement for determining whether [60]% or more the airflow tracks over the first portions. Please see the below annotation of ROTHWELL WO 2018142115’s Fig. 7 illustrating a hypothetical airflow path by a white arrow:
Let’s assume that [60].01% of the above airflow (illustrated by the white arrow) tracks/covers the first portions. Now let’s assume less power is supplied to the aerosol generating component and the width of the first portions is reduced. Please see reproduction below:
Does this same structure anticipate even when less than [60]% of the airflow tracks/covers the smaller first portion?
Final Rejection at 12–13. (annotation added to harmonize the previous concerns with the amendments to pending amended claim 1, i.e., from 50% to 60% of the flow path being within the aera to be tracked.)
As demonstrated above, the size/width/shape of the first portions configured to vaporize aerosolizable material at a higher rate is/are variable and not concretely defined. This ambiguity when attempting to structurally limit the flow path arrangement because the constraint the flow path depends on the variable and not concretely defined first portions configured to vaporize aerosolizable material at a higher rate.
Returning to Applicant Remarks, Applicant continues
The person having ordinary skill in the art would also understand that the lower end of power delivery is constrained by the requirement for aerosol generation and the upper limit of power delivery is constrained by conventional battery and cell design.” Accordingly, the person having ordinary skill in the art would be able to straightforwardly determine whether more than 60% of the flow path is within the area to be tracked because this condition is assessed when the power supplied to the aerosol generator causes aerosol generation and is within the limits of conventional batteries and cells. Technically unrealistic hypothetical embodiments, for example in which inappropriate amounts of power are supplied to the aerosol generating component, exceeding the limitations of conventional batteries and cells used in electrically operated non- combustible aerosol delivery systems, would not be considered by that person. Hence, amended claims 1 and 3-23 are clear and not indefinite.
Id. at 7. Examiner respectfully disagrees. Respectfully, this characterization is overly simplified and fails to consider the many other parameters which impact the size/width/shape of first portions configured to vaporize aerosolizable material at a higher rate. See Specification at 39 ll. 6–19 (explaining that vaporization rate depends on P = 12R), and see also id. at 67 ll. 2–6 (explaining that “presence of aerosolizable material effectively acts to moderate the temperature of the aerosol generating component during heating, where less aerosolizable material is being provided there will be a greater localised temperature.”), id. at 21 ll. 4–19 (discussing various ways to modify the porosity of the aerosol generating component), id. at 22 ll. 7–20 (explaining that “parameters of the aerosol generating component, such as material, thickness, width, length, porosity etc. can be selected so as to provide the desired resistance.”), id. at 43 ll. 12–14 (explaining “[t]he boundary between the portions having greater and lesser rates of vaporization (propensity for the flow of electrical current) may be linear or non linear. In some examples the boundary is circular, elliptical, sinusoidal or polygonal.”) (annotation added), id. at 17 ll. 11–12 (explaining the aerosol generating component may be inductive or resistive), id. at 17 ll. 14–18 (explaining the aerosol generating component may be a mesh that is woven or sintered), id. at 18 ll. 2–7 (discussing forming the mesh using ceramics instead of or in addition to metal), id. at 19 ll. 1–14 (explaining vaporization depends on porosity of the aerosol generating component), id. at 19 ll. 15–20 (providing different examples of aerosol generating components including a metal foil combined with a capillary structure), id. at 20 ll. 5–14 (explaining different metals have different specific electric resistances), and id. at 70 ll. 1–2 (explaining “in some examples, the aerosol generating component has an upstream portion having a relatively greater electrical resistance than a subsequent downstream portion”). As demonstrated above, the size/width/shape of the first portions configured to vaporize aerosolizable material at a higher rate is/are variable and not concretely defined. This ambiguity when attempting to structurally limit the flow path arrangement because the constraint the flow path depends on the variable and not concretely defined first portions configured to vaporize aerosolizable material at a higher rate.
Claim Rejections - 35 U.S.C. 112(d)
Claim 18 was rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends..
Applicant canceled claim(s) 2, 12, 14, and 18 in the amended claim set filed on 02/17/2026. Accordingly, the relevant rejection(s) to the canceled claims are moot and withdrawn.
Claim Rejections - 35 USC § 102
Claim(s) 1, 3, 5–14, and 16–23 are is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by BUCHBERGER WO2018211252A1 (made of record on 09/27/2022) (“BUCHBERGER”) (with ROTHWELL WO 2018142115 (“BUCHBERGER”) evidencing BUCHBERGER’s anticipation of claim 10).
Applicant canceled claim(s) 2, 12, 14, and 18 in the amended claim set filed on 02/17/2026. Accordingly, the rejection(s) under 35 U.S.C. 102(a)(1) of canceled claims in the Final Rejection is/are moot and withdrawn.
Applicant’s Remarks on pages 8–11 have been fully considered, but are not persuasive for the reasons set out in the following paragraphs.
Applicant states:
First, the Examiner's rejection relies on a hypothetical scenario in which enough energy is supplied to the aerosol generator to create a first portion that is wider than the width of the single air inlet. However, a person having ordinary skill in the art would recognize that this is not achievable using a conventional battery or cell. As explained in the specification, energy is supplied to the aerosol generating component using a cell or battery. A person having ordinary skill in the art would understand that the lower end of power delivery is constrained by the requirement for aerosol generation and the upper limit of power delivery is constrained by conventional battery and cell design. A person having ordinary skill in the art would disregard technically unrealistic interpretations in which an amount of power exceeding that of a conventional battery or cell is supplied to the aerosol generator. Buchberger expressly notes that power is supplied to the aerosol generator using a cell or battery. Moreover, Figure 7 of Rothwell, which the Examiner relies upon to evidence Buchberger's disclosure, shows glowing regions that span only a fraction of the total width of the aerosol generator, not the full width. This is consistent with the limitations imposed by conventional power sources.
Remarks at 9. Respectfully, Applicant does not cite any evidence, other than generally referencing the Specification, for the position that “a person having ordinary skill in the art would recognize that this is not achievable using a conventional battery or cell.” The arguments of counsel, though possessing evidentiary weight as a possible admission, cannot take the place of evidence in the record. See MPEP § 2129 and § 2144.03 for a discussion of admissions as prior art. See MPEP § 716.01(c) for examples of attorney statements which are not evidence and which must be supported by an appropriate affidavit or declaration.
Applicant continues:
Second, the Examiner relies on schematic Figure 5 of Buchberger to derive the width of the single air inlet relative to the width of the first portion. A person having ordinary skill in the art understands that schematic diagrams are not typically drawn to scale or proportion. While a person having ordinary skill in the art may understand from Figure 5 that the width of the single air inlet is less than the width of the aerosol generator, a person having ordinary skill in the art cannot derive from Figure 5 that the width of the single air inlet is less than the width of the first portion. This information is simply not disclosed in Figure 5 or elsewhere in Buchberger. The Examiner has improperly read dimensions and proportions into a schematic figure that does not disclose such information.
. . .
The Examiner also asserts on pages 5 and 6 of the Final Office Action that Buchberger's airflow path is influenced to flow more over the first portions than the second portions by two mechanisms. The first mechanism concerns the manner in which the aerosol generating component is held in the article such that regions are sandwiched between elements 101 and 102. The second mechanism concerns the size of the air inlet relative to the planar width of the aerosol generating article. However, both mechanisms rely on schematic Figures 3 to 5 in Buchberger for relative size information concerning the regions sandwiched between elements 101 and 102, the central region between said regions, and the air inlet. As explained above, such information cannot be derived from schematic figures that are not drawn to scale or proportion.
Remarks at 9–10. Examiner respectfully disagrees. The Final Rejection did not improperly read dimensions and proportions into a schematic figure that does not disclose such information. Instead, the previous rejection explained what a person of ordinary skill in the art understands the prior art reference to disclose. The above previously cited structure of BUCHBERGER anticipates the limitations at issue when read in light of Applicant’s Specification because the cited evidence is consistent with —if not identical to—Applicant’s disclosure.
Applicant continues:
The claims are also not rendered obvious by Buchberger alone or in combination with the other cited references. Buchberger fails to disclose or suggest the claimed differences and therefore cannot render obvious the claimed subject matter.
In particular, Buchberger fails to disclose the concept of adjusting the width of a single air inlet relative to the width of the aerosol generator, let alone a first portion thereof. A person having ordinary skill in the art, when reviewing Buchberger, would have no reason to modify Buchberger's design to provide a single air inlet that has a narrower width than the first portion. Buchberger does not teach, suggest, or provide any motivation for making such a modification. The Examiner has not identified any teaching in Buchberger or the other references that would have led a person having ordinary skill in the art to configure the aperture width in the claimed manner.
Remarks at 11. Respectfully, this is not persuasive because no deficiencies exist. Even if deficiencies exist, it would have been obvious to one of ordinary skill in the art as of the effective filing date to arrive at them in view of the drawings of BUCHBERGER. This is explained at length in the rejection below.
Applicant continues:
Further, Buchberger fails to disclose the concept of designing an article such that an air flow path is concentrated over the first portion. A person having ordinary skill in the art, when reviewing Buchberger, would have no reason to modify Buchberger's design to ensure that at least 60% of the air flow path is within the area to be tracked. Buchberger does not teach, suggest, or provide any motivation for concentrating the airflow over the first portions in the claimed manner. The Examiner has not identified any teaching in Buchberger or the other references that would have led a person having ordinary skill in the art to achieve this airflow configuration.
Remarks at 11. Respectfully, this is not persuasive because no deficiencies exist. Even if deficiencies exist, it would have been obvious to one of ordinary skill in the art as of the effective filing date to arrive at them in view of the drawings of BUCHBERGER. This is explained at length in the rejection below.
Therefore, the above referenced rejection(s) under 35 U.S.C. 102(a)(1) in the Final Rejection is/are maintained. The relevant claims are also rejected under 35 U.S.C. 103.
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 1, 3–11, 13, 15–17, 19–23, and 25–26 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.
As to claim 1, this claim now contains two distinct but related indefinite limitations. The first indefinite limitation is the recitation of “the flow path being arranged to track the one or more first portions configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component . . . wherein more than 60% of the flow path is within the area to be tracked” is indefinite. The second indefinite limitation is “wherein the aperture width is smaller than a width of the one or more first portions of the aerosol generating component configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component.” Both of these limitations attempt to structurally narrow components of the article by referencing variably/spongy/non-concrete/changing/functional features, i.e., the one or more first portions first portions of the aerosol generating component configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component.
One of ordinary skill in the art understands that the one or more first portions “configured to vaporize aerosolizable material at a higher rate” is/are not a separate structure of the aerosol generating component, but, rather, is/are regions of the aerosol generating component which heat(s) up more rapidly than other regions when energy is applied. See Specification at 44 ll. 7–9 (explaining that the “[first] portions may be configured to dissipate greater power during use and thus have the potential to reach a higher temperature during use (and thus which are configured to vaporize aerosolizable material at a higher rate.”)
This concept of “one or more first portions configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component” is best illustrated in ROTHWELL WO 2018142115’s Fig. 7, which is reproduced below:
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One of ordinary skill in the art understands that the location/width of the one or more first portions (glowing portion above) expands or contracts depends on the physical properties of the aerosol generating component, which are not claimed, and how much energy is applied to each end of the aerosol generating component. See Specification at 39 ll. 6–19 (explaining that vaporization rate depends on P = 12R), and see also id. at 67 ll. 2–6 (explaining that “presence of aerosolizable material effectively acts to moderate the temperature of the aerosol generating component during heating, where less aerosolizable material is being provided there will be a greater localised temperature.”), id. at 21 ll. 4–19 (discussing various ways to modify the porosity of the aerosol generating component), id. at 22 ll. 7–20 (explaining that “parameters of the aerosol generating component, such as material, thickness, width, length, porosity etc. can be selected so as to provide the desired resistance.”), id. at 43 ll. 12–14 (explaining “[t]he boundary between the portions having greater and lesser rates of vaporization (propensity for the flow of electrical current) may be linear or non linear. In some examples the boundary is circular, elliptical, sinusoidal or polygonal.”) (annotation added), id. at 17 ll. 11–12 (explaining the aerosol generating component may be inductive or resistive), id. at 17 ll. 14–18 (explaining the aerosol generating component may be a mesh that is woven or sintered), id. at 18 ll. 2–7 (discussing forming the mesh using ceramics instead of or in addition to metal), id. at 19 ll. 1–14 (explaining vaporization depends on porosity of the aerosol generating component), id. at 19 ll. 15–20 (providing different examples of aerosol generating components including a metal foil combined with a capillary structure), id. at 20 ll. 5–14 (explaining different metals have different specific electric resistances), and id. at 70 ll. 1–2 (explaining “in some examples, the aerosol generating component has an upstream portion having a relatively greater electrical resistance than a subsequent downstream portion”).
The Final Rejection explained:
Since the width of Applicant’s one or more first portions is variable, i.e., changes depending on the amount current flowing through the structure, one of ordinary skill in the art is not able to use the first portions as a definitive measurement for determining whether [60]% or more the airflow tracks over the first portions. Please see the below annotation of ROTHWELL WO 2018142115’s Fig. 7 illustrating a hypothetical airflow path by a white arrow:
Let’s assume that [60].01% of the above airflow (illustrated by the white arrow) tracks/covers the first portions. Now let’s assume less power is supplied to the aerosol generating component and the width of the first portions is reduced. Please see reproduction below:
Does this same structure anticipate even when less than [60]% of the airflow tracks/covers the smaller first portion?
Final Rejection at 12–13. (annotation added to harmonize the previous concerns with the amendments to pending amended claim 1, i.e., from 50% to 60% of the flow path being within the aera to be tracked.) The same issues persist and relevant rejection is maintained.
While the above explains attempting to structurally limit airflow path by referencing variably/spongy/non-concrete/changing/functional one or more first portions is indefinite, attempting to do the same with the aperture also creates ambiguity. That is, the recitation of “wherein the aperture width is smaller than a width of the one or more first portions of the aerosol generating” is indefinite because the width of the aperture also depends on the physical properties of the aerosol generating component, which are not claimed, and how much energy is applied to each end of the aerosol generating component. Please see annotations below: d
Accordingly, claim 1 is indefinite because the recitations of “the flow path being arranged to track the one or more first portions configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component . . . wherein more than 60% of the flow path is within the area to be tracked” and “wherein the aperture width is smaller than a width of the one or more first portions of the aerosol generating component configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component” attempt to structurally narrow components of the article by referencing variably/spongy/non-concrete/changing/functional features, i.e., the one or more first portions first portions of the aerosol generating component configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component.
Claims 3–11, 13, 15–17, 19–23, and 25–26 are rejected for the same reasons via their dependency on claim 1.
As to claim 25, the recitation of “wherein more than 90% of the flow path is within the area to be tracked” is indefinite for substantially the same reasons identified above.
As to claim 26, the recitation of “wherein the aerosol generating component has an electrical resistance of 2 ohms or less” is indefinite because electrical resistance is dependent on many variables, e.g., temperature, which are not defined. See Specification at 22 ll. 16–17 (explaining “parameters of the aerosol generating component, such as material, thickness, width, length, porosity etc. can be selected so as to provide the desired resistance.”) As explained by All About Circuits: Temperature Coefficient of Resistance, https://www.allaboutcircuits.com/textbook/direct-current/chpt-12/temperature-coefficient-resistance/; retrieved online 03/2/2026 (“All About Circuits”) “[m]ost conductive materials change specific resistance with changes in temperature. This is why figures of specific resistance are always specified at a standard temperature (usually 20° or 25° Celsius).” Id. at 3, first bullet point. Accordingly, claim 26 is indefinite because one structure may have an electrical resistance of greater than 2 ohms at first temperature and then less than 2 ohms at a different temperature.
Claim Rejections - 35 USC § 102/103
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.
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) 1, 3, 5–11, 13, 16–17, 19–23, 25–26 is/are rejected under 35 U.S.C. 102(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over BUCHBERGER WO2018211252A1 (made of record on 09/27/2022) (with ROTHWELL WO 2018142115 evidencing BUCHBERGER’s anticipation of claim 10).
As to claim 1, BUCHBERGER discloses an article for use with an electrically operated non-combustible aerosol delivery system, the article comprising
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a generally planar aerosol generating component ( Figs. 1 and 7, 103; Page 8, Lines 12–35) suspended within an aerosol generating chamber (formed by 101 and 102),
the aerosol generating component comprising one or more first portions and other portions (see below), wherein the one or more first portions are configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component (see below),
The above illustrates that the first portions configured to vaporize aerosolizable material at a higher rate (those of BUCHBERGER which would glow as evidence by ROTHWELL) make up around 60% of the overall planar structure of the planar structure.
BUCHBERGER further discloses wherein said chamber (formed by 101 and 102) has one or more air inlets (Fig. 7’s upstream A; p. 12 ll. 14–35) and one or more air outlets which define a flow path therebetween (Fig. 7’s downstream A; p. 12 ll. 14–25) wherein the one or more air inlets and the one or more air outlets are aligned to form an imaginary axis substantially parallel to a plane of the aerosol generating component, the imaginary axis defining the flow path (Fig. 7; p. 12 ll. 14–25). Please see reproduction below:
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Accordingly, BUCHBERGER’s Fig. 7, when viewed in isolation, would arrive at an airflow path that flows over the entire aerosol generating component and would inherently track the first portions because around at least 60% of the drawn air would flow over the one or more first portions configured to vaporize aerosolizable material at higher rate than the other portions of the aerosol generating component. It’s arguable as to whether this disclosure alone, i.e, Fig. 20, anticipates or makes obvious the limitation at issue because it’s not explicitly clear if the first portions make up 60 % of the area above/below the airflow path (for example, the first portions could be larger or smaller than the other portions depending on how much energy is applied to the aerosol generating component). As explained the following paragraphs, BUCHBERGER’s anticipates or makes obvious the limitation at issue because BUCHBERGER’s airflow path is influenced to flow more over the first portions than the second portions by two mechanisms.
The first mechanism restricting BUCHBERGER’s airflow path to be more over the first portions than the second portions is the manner in which the aerosol generating component is held in the article. Specifically, the periphery of the aerosol generating component 103 is sandwiched between 101/102, which results inner most region of the aerosol generating component 103 (regions internal relative to 110A) having air flowing over the first portions. Please see below:
BUCHBERGER, Figs. 3–4 (evidencing air flow will be restricted inwardly over the first portions after the two halves are sandwiched together because an outer region of the aerosol generating component will be sandwiched between 101 and 102). (annotation added)
The second mechanism restricting BUCHBERGER’s airflow path to be more over the first portions than the second portions is size of the air inlet/outlet relative to the planar width of the aerosol generating article. Specifically, BUCHBERGER’s air inlet/outlet are illustrated as being less than the planar width of the aerosol generating article. Please see reproduction below:
BUCHBERGER, Fig. 5 (evidencing air flow will be restricted inwardly over the first portions after the two halves are sandwiched together because the air inlet/outlet are less than the planar width of the aerosol generating article). (annotation added)
The above also evidences BUCHBERGER discloses the indefinite limitation of “wherein the single air inlet has an aperture width, wherein the aperture width is smaller than a width of the one or more first portions of the aerosol generating component configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component.” For example, the aperture is smaller or larger relative to the first portions when more or less energy is applied:
Accordingly, BUCHBERGER, by arriving at the same structure claimed is a anticipates claim 1.
Additionally or alternative, it would have been obvious to one of ordinary skill in the art as of the effective filing date incorporate the teachings of and arrive at arrive at wherein more than 60% of the flow path is within the area to be tracked, wherein the one or more air inlets consists of a single air inlet, wherein the single air inlet has an aperture width, wherein the aperture width is smaller than a width of the one or more first portions of the aerosol generating component configured to vaporize aerosolizable material at a higher rate than the other portions of the aerosol generating component for the benefit of restricting air flow inwardly over the first portions after the two halves are sandwiched together because an outer region of the aerosol generating component will be sandwiched between 101 and 102 (as taught by Figs. 3–4) and because the air inlet/outlet are less than the planar width of the aerosol generating article (as taught by Fig. 5). See MPEP § 2112(III) (explaining that “[w]here applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection under both 35 U.S.C. 102 and 103.”) (annotation added).
As to claim 3, BUCHBERGER discloses and/or makes obvious the article of claim 1.
BUCHBERGER further discloses wherein the one or more first portions configured to vaporize aerosolizable material at a higher rate correspond with portions having greater propensity for the flow of electrical current, and the other portions correspond with portions having a lower propensity for the flow of electrical current (Figs. 3–7; Page 9, Lines 17–34).
As to claims 5–7, BUCHBERGER discloses and/or makes obvious the article of claim 1.
BUCHBERGER illustrates that the planar aerosol generating component has a uniform thickness (Fig. 7) and is a porous sheet-like material (Page 19, Lines 20–25).
This disclosure anticipates at least a planar aerosol generating component with a uniform density. This arrives at wherein the portion configured to vaporize aerosolizable material at a higher rate has a density of up to 100% a density of the other portions, which anticipates wherein the density of the one or more first portions configured to vaporize aerosolizable material at a higher rate is up to 200%, 250%, and 300% of the density of the other portions.
As to claim 8, BUCHBERGER discloses and/or makes obvious the article of claim 1.
BUCHBERGER further discloses wherein the aerosol generating component comprises one or more apertures or one or more slots (Figs. 3–6; Page 9, Lines 16–27).
As to claim 9, BUCHBERGER discloses and/or makes obvious the article of claim 8.
BUCHBERGER further discloses wherein the one or more slots extend internally from a periphery of the aerosol generating component (Figs. 3–6; Page 9, Lines 16–27).
As to claim 10, BUCHBERGER discloses and/or makes obvious the article of claim 1.
BUCHBERGER further discloses wherein the one or more first portions configured to vaporize aerosolizable material at a higher rate are disposed, relative to a longitudinal axis of the aerosol generating component, inwardly of the other portions (Figs. 2–3 illustrates a shorter distance between slots located inwardly than the perimeter region of the snake-like path of the aerosol generating component. One of ordinary skill in the art understands that inward region will have a shorter length and greater resistance and will heat up more than the outer regions; Page 9, Lines 17–34.) ROTHWELL WO 2018142115’s Fig. 7, reproduced below, demonstrates that the comparable structure in BUCHBERGER anticipates claim 10:
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As to claim 11, BUCHBERGER discloses and/or makes obvious the article of claim 1.
BUCHBERGER further discloses wherein the aerosol generating component is rectangular and the one or more first portions configured to vaporize aerosolizable material at a higher rate are disposed, relative to the longitudinal axis of the aerosol generating component, on opposing sides of the aerosol generating component (Figs. 4–7). ROTHWELL WO 2018142115’s Fig. 7, reproduced below, demonstrates that the comparable structure in BUCHBERGER anticipates claim 11:
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Accordingly, BUCHBERGER further anticipates wherein the aerosol generating component is rectangular and the one or more first portions configured to vaporize aerosolizable material at a higher rate are disposed, relative to the longitudinal axis of the aerosol generating component, on opposing sides of the aerosol generating component (Figs. 4–7).
As to claim 13, BUCHBERGER discloses and/or makes obvious the article of claim 1. wherein the single air inlet is bisected by the aerosol generating component (Figs. 3–7).
As to claim 16, BUCHBERGER discloses and/or makes obvious the article of claim 1, wherein the one or more air inlets are configured such that air entering the chamber is distributed away from a surface of the aerosol generating component (Fig. 7).
As to claim 17, BUCHBERGER discloses and/or makes obvious the article of claim 1, wherein the one or more air inlets and/or one or more air outlets form apertures having a cross-sectional shape selected from circular, semi-circular, triangular, square, rectangular and/ or polygonal (See opening formed from sandwiched constructure in Figs. 5–6, discussion of inlet of Fig. 7 at Page 11 Line 27–Page 12, Line 35; with either a cross section of the tubular being circular and at least Fig. 6 illustrating a polygonal opening on the left hand side).
As to claim 19, BUCHBERGER discloses and/or makes obvious the article of claim 1, wherein the article comprises a reservoir for aerosolizable material (Fig. 7, 3; Page 12, Lines 16–19).
As to claim 20, BUCHBERGER discloses and/or makes obvious the article of claim 19, wherein the reservoir extends annularly around the aerosol generating chamber (Fig. 7, 3; Page 12, Lines 16–19).
As to claim 21, BUCHBERGER discloses and/or makes obvious the article of claim 20, wherein an external wall of the aerosol generating chamber forms an internal wall of the reservoir (Fig. 7, 101).
As to claim 22, BUCHBERGER discloses and/or makes obvious the article according to claim 19, wherein the reservoir comprises aerosolizable material (Page 4, Line 31– Page 5, Line 19).
As to claim 23, BUCHBERGER discloses and/or makes obvious 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 7, Lines 9–31).
As to claim 25, BUCHBERGER discloses and/or makes obvious the article according to claim 1, BUCHBERGER discloses/ makes obvious
The above structure is considered to arrive at wherein more than 90% of the flow path is within the area to be tracked.
As to claim 26, BUCHBERGER discloses and/or makes obvious the article according to claim 1.
BUCHBERGER by disclosing and/or making obvious the article according to claim 1, which appears to be the same structure as that claimed, but does not explicitly disclose the resistance of the aerosol generating device is considered to arrive at the indefinite limitation of wherein the aerosol generating component has an electrical resistance of 2 ohms or less. See MPEP 2112(III) (explaining “[w]here applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection under both 35 U.S.C. 102 and 103.”) (annotation added)
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) 4 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over BUCHBERGER WO 2018211252A1 (made of record on 09/27/2022) in view of ADAIR US 20230074217 (of record).
As to claim 4, UCHBERGER discloses and/or makes obvious the article according to claim 3.
BUCHBERGER fails to disclose wherein the one or more first portions having the greater propensity for the flow of electrical current have a different density to the other portions having the lower propensity for the flow of electrical current.
ADAIR teaches portions having greater and lesser propensity for the flow of electrical current have different densities (Fig. 6 and [0051]).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the teachings of ADAIR into the disclosure of BUCHBERGER for the benefit of heating some regions more than others, improving wicking in desired regions, and enabling the aerosol generating component to be custom tailored (as taught by ADAIR at [0017–18] and [0051–52]).
This would arrive at wherein the one or more first portions having the greater propensity for the flow of electrical current have a different density to the other portions having the lower propensity for the flow of electrical current.
As to claim 11, BUCHBERGER discloses and/or makes obvious the article according to claim 1 and anticipates claim 11 for the reasons stated above. An alternative rejection is made below to advance compact prosecution.
BUCHBERGER further discloses wherein the aerosol generating component is rectangular (Fig. 2–7).
ADAIR teaches portions having greater rates of vaporization are disposed, relative to the longitudinal axis of the aerosol generating component, on opposing sides of the aerosol generating component. (Fig. 6 and [0051]).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the teachings of ADAIR into the disclosure of BUCHBERGER for the benefit of heating some regions more than others, improving wicking in certain regions, and enabling the aerosol generating component to be custom tailored (as taught by ADAIR at [0017–18] and [0051–52]). This would have to obvious result of heating desired regions more than other, e.g., the portions disposed, relative to the longitudinal axis of the aerosol generating component, on opposing sides of the aerosol generating component.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over BUCHBERGER WO 2018211252A1 (made of record on 09/27/2022) in view of DUBEIF US 20140334802 (of record).
As to claim 15, BUCHBERGER discloses and/or makes obvious the article according to claim 1.
BUCHBERGER fails to explicitly disclose wherein the air inlet has an aperture width of less than 1.5mm.
DUBIEF teaches wherein the air inlet has an aperture width of less than 1.5mm (Fig. 2, 422 and [0021] and [0080–81]).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the specific teachings of DUBIEF’s air inlet vents into the generic disclosure of BUCHBERGER for the benefit of an operable aerosol delivery system that is produces an aerosol with a desirably particle size (as taught by DUBIEF at [0062]).
Claim(s) 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over BUCHBERGER WO 2018211252A1 (made of record on 09/27/2022) in view of SANTOS US 20170354185 (“SANTOS”).
As to claim 26, BUCHBERGER discloses and/or makes obvious the article according to claim 1 and remains as applied in the rejection above.
BUCHBERGER is silent the electrical resistance of the aerosol generating device.
SANTOS teaches wherein the aerosol generating component has an electrical resistance of 2 ohms or less. ([0031])
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the specific teachings of SANTOS into the generic disclosure of BUCHBERGER for the benefit causing the aerosol generating component to generate heat and aerosol (as taught by SANTOS at [0031]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 20150114410 discloses atomizer resistances usually vary from 1.50 (ohms) to 3.00 from one atomizer to the next but can go as low as 0.10 in the most extreme cases of DIY coil building which produce large amounts of vapor but could present a fire hazard and other dangerous battery failures if the user is not knowledgeable enough about basic electrical principles and how they relate to battery safety. ([0007])
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/MANLEY L CUMMINS IV/ Primary Examiner, Art Unit 1747