DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Claims 1 and 9 are amended. Claims 5 and 8 are cancelled. Claim 17 is newly added. Claims 1-4, 6-7 and 9-17 are presently examined.
Applicant’s arguments regarding the objections to the drawings have been fully considered and are persuasive. The objections of 7/2/2026 are withdrawn.
Applicant’s arguments regarding the rejections under 35 USC 112(b) have been fully considered and are persuasive. The rejections of 7/2/2026 are overcome.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-4, 6-7 and 9-16 are rejected under 35 U.S.C. 103 as being unpatentable over Reevell (GB 2534215) in view of Emmett (US 11,305,076).
Regarding claims 1-2 and 16, Reevell discloses an aerosol generating device (figure 2, reference numeral 2) that has a lower surface (figure 2, reference numeral 12) and an upper surface joined by rounded surfaces (page 31, lines 12-20, figure 2, reference numeral 10), which are considered all together to meet the claim limitation of a first housing. The upper surface has a lid (figure 2, reference numeral 16), which is considered to meet the claim limitation of a second housing. that defines an air inlet into the device (page 31, lines 22-26, figure 2, reference numeral 20), which is considered to meet the claim limitation of an inlet. The device has a chamber that forms a recess (figure 2, reference numeral 28), which is considered to meet the claim limitation of an aerosol generation chamber and a recess that receives an aerosol generating article, that extends to an end opening (page 32, lines 18-25, figure 2, reference numeral 22), which is considered to meet the claim limitation of an outlet. An article made from aerosol forming substrate is placed within the chamber (page 33, lines 21-30, figure 8, reference numeral 44), which is considered to meet the claim limitation of a portion of aerosol generating substrate, and is held within the chamber when the lid is closed (page 34, lines 12-21). The lower surface of the chamber is defined by a flat electric heater (page 32, lines 27-34), which is considered to meet the claim limitation of flat bottom surface. The air flows through the device from the air inlet, through the heating chamber, and then through the outlet (page 34, lines 34-36, page 35, lines 1-21), which is considered to meet the claim limitation of an air flow channel. The article is squashed and compressed by a raised section of the lid located opposite the heater (page 34, lines 12-21, figure 2, reference numeral 42), which is considered to meet the claim limitation of a compression surface. Reevell does not explicitly disclose (a) the article being cuboid, (b) a second air flow channel, and (c) the device and article having the claimed relative thicknesses.
Regarding (a), it would have been obvious to one of ordinary skill in the art to change the shape of the article of Reevell to be cuboid since there is no evidence that the particular shape of the article is critical. The change in form or shape, without any new or unexpected results, is an obvious engineering design. See MPEP § 2144.04 IV B.
Regarding (b), Emmett teaches an aerosol generating device for use with a shape transformable aerosol forming substrate in which the device housing comprises a molding cavity (abstract). The first mold half is formed by a lid that has a series of longitudinally running ribs (figure 85, reference numeral 48) that form areas that are not completely filled with aerosol forming substrate to provide homogenous transport of evaporated substrate (column 13, lines 28-39), which are considered to meet the claim limitation of air flow channels. The aerosol leaves the substrate through an open pervious protective layer such as paper (column 8, lines 49-56). Emmett additionally teaches that evaporated substances have difficulty moving through compressed substrates, especially if the substrate is dense, and that the substrate therefore has an open layer so that the evaporated substances can leave the substrate as an airflow (column 12, lines 42-55) between the ribs (column 13, lines 14-27).
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the compression surface of modified Reevell with the flutes of Emmett. One would have been motivated to do so since Emmett teaches providing ribs that define airflow channels so that evaporated substances can leave a mold that compresses a substrate while avoiding the difficulties associated with passing through a compressed and possibly dense substrate.
Regarding (c), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the claimed components have the claimed relative sizes. One would have been motivated to do so since there is no evidence that the specific sizes of the components of Reevell are critical as long as the article of Reevell is compressed. A change in size is generally recognized as being within the level of one of ordinary skill in the art absent evidence that the change in size results in a difference in performance. See MPEP § 2144.04 IV A.
Regarding claim 3, Reevell discloses that the lid is connected to the rest of the device using a hinge (page 31, lines 28-36).
Regarding claim 4, Reevell discloses that the device has a solid band located around the device (page 32, lines 1-8, figure 1, reference numeral 26) that prevents the lid from opening (page 32, lines 10-16).
Regarding claim 6, Reevell discloses that the aerosol forming substrate is placed on the heater (page 34, lines 4-10) so that the heater heats the substrate to create an aerosol (page 34, lines 34-36, page 35, lines 1-21).
Regarding claim 7, Reevell discloses that the chamber side walls are thermally insulating (page 13, lines 10-11).
Regarding claims 9 and 10, the areas between the ribs of Emmett are considered to form grooves in the compression surface of modified Reevell.
Regarding claim 11, it is evident that the grooves of modified Reevell would be connected to the inlet and outlet of modified Reevell since they are located within the chamber of modified Reevell, which connects the inlet and outlet of modified Reevell.
Regarding claim 12, modified Reevell teaches all the claim limitations as set forth above. Emmett additionally teaches that, in a different embodiment, parallel flutes are each provided with their own air inlet opening to provide individual airflow (column 14, lines 5-9). Modified Reevell does not explicitly teach the flutes of modified Reevell each having their own inlet.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide each flute of modified Reevell with their own air inlet. One would have been motivated to do so since Emmett teaches providing each flute with their own inlet to provide individual airflow at different portions of a substrate. The combination of familiar elements is likely to be obvious when it does no more than yield predictable results. See MPEP § 2143, A.
Regarding claim 13, Emmett teaches that the ribs are arranged in parallel (figure 16).
Regarding claim 14, Emmett teaches that the ribs form raised portions (figure 16), which would evidently continue to compress the article when an article is inserted.
Regarding claim 15, Reevell discloses that the device is a hand-held portable device (page 2, lines 7-8) and has an electrical power source (page 2, lines 10-14).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Reevell (GB 2534215) in view of Emmett (US 11,305,076) as applied to claim 1 above, and further in view of Armoush (US 10,561,172).
Regarding claim 17, modified Reevell teaches all the claim limitations as set forth above. Modified Reevell does not explicitly teach a gasket.
Armoush teaches a hookah (abstract) having a heating apparatus with top and bottom pieces that create a hermetic seal between them using a rubber between the two pieces to prevent air leaks (column 9, lines 1-15).
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide a rubber of Armoush between the lid and lower surface of Reevell. One would have been motivated to do so since Armoush teaches a preventing air leaks by using a rubber.
Response to Arguments
Regarding the rejections under 35 USC 103, applicant’s arguments have been fully considered but they are not persuasive. Applicant argues (a) that Reevell requires air and aerosol to flow through the substrate, (b) that modifying Reevell in view of Emmett would not be obvious since there is no reason for air and aerosol to flow outside the substrate of Reevell, and (c) that the dependent claims are allowable due to dependence on an allowable claim.
Regarding (a), while Reevell may not disclose air and aerosol passing in channels above the substrate, nowhere does Reevell disclose anything that would constitute a teaching away under MPEP § 2145 X D 1.
Regarding (b), Emmett explicitly teaches that allowing air and aerosol to flow over a substrate rather than through it avoids difficulty in having aerosol flow through a substrate, particularly when the substrate is dense. One of ordinary skill in the art that compressing a substrate would reduce the area within it for airflow, thus resulting in a denser substrate that would obstruct aerosol flow. Emmett explicitly teach ribs and channels to avoid such issues caused when a substrate is compressed.
Regarding (c), all claims including the independent claim are rejected as set forth above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUSSELL E SPARKS whose telephone number is (571)270-1426. The examiner can normally be reached Monday-Friday, 9:00 am-5 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at 571-270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUSSELL E SPARKS/ Primary Examiner, Art Unit 1755
