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 .
Status of the Claims
This office action is in response to Applicant’s amendment filed on 03 November 2025:
Claims 23, 25-26, 28-37 and 40-44 are pending
Claims 37 and 40-43 are withdrawn
Claims 1-22, 24, 27 and 38-39 are cancelled
Claim 23 is amended
Response to Amendment
Applicant's amendments to the claims filed 03 November 2025 have been acknowledged. The rejection to Claim 27 under 35 U.S.C. § 112(d) is withdrawn due to cancellation of the claim.
Response to Arguments
Applicant's arguments filed 03 November 2025 have been fully considered but they are not persuasive.
On Pages 9-10 of Applicant’s Response, Applicant argues that Bostock’s actuator merely shortens and does not “bend” as recited in Claim 23. Applicant appears to argue that since the actuator is illustrated as curved in some figures and that Bostock’s Figures 8a-8d are merely schematic, it is not possible for Bostock’s actuator to shorten by bending and thus there is no teaching or suggestion for said actuator to bend.
Examiner respectfully disagrees, as Bostock merely mentions that the actuator is “shortened” and does not specify the specific mechanism used for shortening said actuator. While certain drawings illustrate the actuator being curved, Bostock also discloses other exemplary embodiments wherein the valve is operated linearly as shown in Figures 8a-d which illustrates the actuator with bent portions that bend to shorten the actuator.
Therefore, Examiner maintains that Bostock’s disclosure does provide suggestion that the actuator can be operated in a manner wherein said actuator shortens via bending to operate in a linear manner as illustrated in the Figure 8c.
On Pages 9-10 of Applicant’s Response, Applicant argues Bostock does not disclose opening and closing the outlet of the reservoir because the pinching (i.e., pinching and closing) occurs on the fluid transfer conduit extending from the reservoir at a position downstream of the reservoir’s outlet.
Examiner notes that in the Office Action dated 01 August 2025, the fluid conduit was identified as the reservoir’s outlet (see Figs. 2, 3, 8c; [0078-0081]; the conduit allows for the liquid to flow from the reservoir to the vaporizing unit and therefore is considered equivalent to the reservoir outlet).
Since the conduit serves as outlet of the reservoir for liquid to flow to the vaporizing unit, opening and closing the conduit via pinching is considered equivalent to opening and closing the reservoir’s outlet.
On Pages 10-11 of Applicant’s Remarks, Applicant argues hindsight reasoning which Examiner notes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
Here, the prior office action takes into consideration the knowledge available to one of ordinary skill in the art as evidenced by the prior art, to conclude that one would be motivated to modify elements of an electronic smoking device and/or actuator component with elements for an electronic smoking device and/or actuator component from another prior art.
Moreover, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. However, so long as any judgment on obviousness takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Here, the prior office action takes into consideration the knowledge which was available to one of ordinary skill in the art of for an electronic smoking device and/or actuator component, clearly exemplified by the disclosed prior art, at the time of the claimed invention to conclude that the claimed invention would have been obvious.
The following is a modified rejection based on amendments made to the claims.
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.
Claims 23, 28-29, 32-34 and 36 are rejected under 35 U.S.C. 103 as being unpatentable over Bostock et al (Publication No. US20200237002A1, cited in IDS dated 09 November 2022).
Regarding Claim 23, Bostock, directed to an electronic cigarette, discloses a liquid-store system (i.e., aerosol-generating article) comprising:
a liquid store 8 (i.e., reservoir) (Figs. 1a- 6b; [0048-0052, 0074, 0085, 0092, 0099]; the first and second body 12/18 which are rotatably connected to act as a closing/sealing surface);
sealing member (First and second body 12/18) Figs. 1a- 6b; [0048-0052, 0074, 0085, 0092, 0099]; the first and second body 12/18 which are rotatably connected to act as a closing/sealing surface);
and actuator (i.e., biasing member 34 and actuator member 44) (Figs. 1a- 6b; [0048-0052, 0074, 0085, 0092, 0099]; the first and second body 12/18 which are rotatably connected to act as a closing/sealing surface);
wherein the liquid reservoir (8) is connected to a liquid outlet (fluid supply conduit (42) (Figs. 2-3; [0014, 0078-0079];
and wherein the sealing member (12/18) can be reversibly transferrable between an opened and closed configuration ([Abstract, 0051-0052, 0108]; member being displaceable is implied as it physically moves from an open to close configuration, and vice versa).
the actuator member is operatively coupled to the sealing member ([0008-0011]; the first body of the valve sealing member is operably connected to the biasing member and actuator);
and wherein the actuator is a thermally driven actuator comprising a shape memory alloy/material ([0016, 0093]; shape memory material actuator shortens in response to heat);
and wherein the thermally driven actuator member (34/44), when heated, bends so as to transfer the sealing member from a closed configuration into an open configuration (see Figs. 8c-d; [0016, 0093-0095]; the actuator’s wire is shortened via thermal response to heat; figures show that the wire has bends and appears to shorten the wire via bending).
Bostock does not explicitly disclose the sealing member is deformable between a flat shape and a curved shape in the open configuration or in the closed configuration, respectively.
However, it should be noted that Bostock further discloses the sealing member (12/18) comprises a flexible tube (Fluid conduit 42), a first closing surface (13), and a second closing surface (26) (see Figs. 4a-6b; [0085-0086], 0134). The surfaces and tube of the sealing member is arranged such that the surfaces can compress (i.e., deform) the elastic tube (Figs. 6a-b; [0081, 0087-0089]). As illustrated in the figures, the compression/deformation of the flexible tube causes said sealing member’s tube to deform into a curved shape in the flow restricted (i.e., closed position) in contrast to the flat shape where the tube is not compressed (see annotated Fig. 6a below).
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Therefore, the compression/deformation of the sealing component’s flexible tube as disclosed by Bostock is considered to read upon the claims in regards to the change in shape between a flat and curved shape in an open and/or closed configuration.
Regarding Claim 28, Bostock further discloses the actuator member (34/44) is further configured to transfer the sealing member (12/18) from the open configuration into the closed configuration ([0098, 0115-0116]; sealing member first body 12 is operably connected to the actuator member part 44 which drives the first body to an open and/or close position).
Regarding Claim 29, Bostock does not explicitly state that the actuator member (34/44) and sealing member (12/18) are integrally formed with each other.
However, it should be noted that the use of a one-piece, integrated construction instead of the structure disclosed or taught in the prior art would have been within the ambit of a person of ordinary skill in the art (see MPEP § 2144.04.V.B).
Therefore, it would have been prima facie obvious for one ordinarily skilled in the art to integrally form the actuator and sealing member, and reasonably expect to yield an integral piece that is capable of transferring from and open and/or close position via actuating and sealing members cooperatively working together.
Regarding Claim 32, Bostock further discloses a return mechanism (Biasing member 34) arranged and configured to transfer the sealing member from the open configuration into the closed configuration (Fig. 4c; [0098-100]; biasing member is configured towards the closed position, wherein the open position is achieved when the actuating force is greater than the biasing force, opening the seal (12/18); implies that the sealing member returns to a closed position when the actuating force no longer exceeds the biasing force).
Regarding Claim 33, Bostock further discloses a liquid conduit (Transfer element 15) configured to deliver aerosol-forming liquid (i.e., fluid) from the liquid reservoir through the reservoir outlet (8) into a region outside the liquid reservoir (i.e., vaporizing unit 11 region), when the sealing member (12/18) is in the open configuration (Figs. 2-3; [0077-0081]; discloses that liquid is restricted when the valve is in a closed position which implies liquid would only flow when the valve/sealing member is in an open configuration).
Regarding Claim 34, Bostock further discloses the liquid conduit (15) is attached to the sealing member (12/18) so as to be transferrable between a first (i.e., open) position and a second (i.e., closed) position together with the sealing member (Fig. 9; [0014, 0114]; discloses that the transfer element is housed in the first body 12 of the valve which is considered equivalent to being attached to the valve/sealing member and subsequently will move along with said valve).
Regarding Claim 36, Bostock further discloses the liquid conduit (15) is a wick element comprises a filament bundle including a plurality of filaments ([0014-0015, 0077]; discloses that the wick can comprise of cotton twine which is considered equivalent to a filament bundle comprising a plurality of cotton filaments/fibers).
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Bostock et al (Publication No. US20200237002A1, cited in IDS dated 09 November 2022) as applied to Claim 23 above, and further in view of Bachofer (Publication No. US20190309870A1).
Regarding Claim 25, Bostock further discloses the thermally driven actuator member (34/44) further comprises at least one actuated spring (34) (Figs. 4b-c; [0098-0100]; discloses the actuator’s biasing member 34 can be a torsion spring). Bostock does not explicitly disclose the actuated spring is a temperature actuated spring.
However, Bachofer, directed to actuator elements, discloses a spring element which can be constructed from a shape-memory alloy and thus be considered a thermally (i.e., temperature) activated actuator element, allowing said spring to actuate between an open and/or closed flow positions based on a temperature limit [0036-0039].
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to modify the actuator torsion spring disclosed by Bostock to be temperature actuated by constructing it from shape-memory alloy as disclosed by Bachofer, as both are directed to a spring actuating element, where Bostock teaches the advantage of constructing a shape-memory thermally actuated spring component so that said spring can assist in opening and closing flow positions based on temperature [0036-0039]; this also involves substituting one known spring design for an actuator member as taught by Bostock with another known spring actuator design as taught by Bachofer to a similar actuator member to predictably yield a resulting actuator member with a thermally actuated spring capable of moving between an open and close configuration.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Bostock et al (Publication No. US20200237002A1, cited in IDS dated 09 November 2022) as applied to Claim 23 above, and further in evidence of Stratton (Publication No. US20200138118A1).
Regarding Claim 26, Bostock discloses that the thermally driven actuator member (34/44) can be an alloy formed by copper-aluminum-nickel, nickel-titanium, or other alloys comprising zinc, copper, gold, and iron [0093].
Bostock does not explicitly disclose the thermally driven actuator member is inductively heatable and comprises a susceptor material.
However, it should be noted that the alloy materials disclosed by Bostock are known with the art to be materials capable of being inductively heatable (i.e., are susceptor materials); as evidenced by Stratton, directed to cartridges for vaporizer devices, discloses that copper and iron are materials capable of being inductively heated. Therefore, the actuator disclosed by Bostock is considered inductively heatable as it comprises a susceptor material (i.e., materials capable of inductively heating) such as iron and copper.
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Bostock et al (Publication No. US20200237002A1, cited in IDS dated 09 November 2022) as applied to Claim 23 above, and further in evidence of Franz et al (Publication No. US20180299013A1).
Regarding Claim 30, Bostock further discloses the sealing member (12/18) comprises a flexible tube (Fluid conduit 42) made of food grade material such silicon, PVC, PU and LLDPE (Fig. 11; [0079-0081, 0134]). Bostock does not explicitly state that the flexible tube is made of an elastic material.
However, it should be noted that PU is known within the art to be an elastic material; as evidenced by Franz, directed to a sealing element component, polyurethane (PU) is a rubber-elastic deformable material. Therefore, the flexible tube made of PU as disclosed by Bostock is considered equivalent to a flexible tube made of elastic material.
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Bostock et al (Publication No. US20200237002A1, cited in IDS dated 09 November 2022) and in evidence of Franz et al (Publication No. US20180299013A1) as applied to Claim 30 above, and further in view of Zeisloft (Publication No. US3191610A).
Regarding Claim 31, Bostock does not disclose the flexible tube comprises a plurality of slits through a wall of the flexible tube extending along a length axis of the flexible tube.
However, Zeisloft, directed to a throttling valve (i.e., actuator) component, discloses an elastic (i.e., flexible) tube (64) which is configured to be elastically deformable to open and close slits (65) (i.e., open and closed configuration) on said elastic tube (see Fig. 1; Col. 1, Lines 16-24). The elastic tube is disclosed to be deformable between and open/closed configuration suitable for controlling fluid flow which is the same the same as the claimed sealing member being deformable between an open/close configuration, and therefore the elastic tube is considered equivalent to the sealing member comprising a flexible tube.
Zeisloft further discloses the elastic/flexible tube comprises of a plurality of slits (65) along a length axis of said flexible tube (see Fig. 1; the slits are shown to extend along the length of the flexible tube). The flexible tube with slits is an advantageous design for fluid control as it is highly responsive to control with relatively no moving parts or wearing surfaces, as the control is primarily dependent on the narrowness of the slits and the flexibility of the elastic tube (Col. 2, Lines 24-34).
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to modify the sealing member flexible tube disclosed by Bostock to have slits as disclosed by Zeisloft, as both are directed to an actuator/valve component, where Zeisloft teaches the advantage of using a flexible tube with a plurality of slits for fluid control as it is highly responsive to control with relatively no moving parts or wearing surfaces (Col. 2, Lines 24-34); this also involves applying a known technique/teaching of a flexible tube actuator/valve component comprising of slits to a similar actuator component to predictably yield a modified actuator component that is capable of transferring a flexible tube sealing member between an open and close position.
Claim 35 is rejected under 35 U.S.C. 103 as being unpatentable over Bostock et al (Publication No. US20200237002A1, cited in IDS dated 09 November 2022) as applied to Claim 33 above, and further in view of Sharpe et al (Publication No. US20020078956A1).
Regarding Claim 35, Bostock further discloses the liquid conduit (15) comprise a heating element (13) within said conduit (Figs. 9, 11; [0113-0114, 0136]; conduit is considered heatable via the heating element located within said conduit). Bostock does not explicitly disclose the liquid conduit (15) is inductively heatable.
However, Sharpe, directed to an aerosol generating inductive heater, discloses a fluid passage (i.e., fluid conduit) comprising a layer for depositing a heating element that can be inductively heated to vaporize fluid within said passage [0039].
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to modify the fluid conduit’s heating element as disclosed by Bostock, to be an inductively heatable heating element as disclosed by Sharpe, as both are directed to an aerosol generating device with a fluid conduit/passage comprising a heating element, where this involves substituting one known conduit heating element design as disclosed by Bostock with another known conduit heating element design as disclosed by Sharpe to a similar aerosol generating device to predictably yield a resulting fluid conduit/passage that is inductively heatable via the inductive heating element.
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 Vu P Pham whose telephone number is (703)756-4515. The examiner can normally be reached M-Th (7:30AM-4:00PM EST).
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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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/V.P./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755