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 11 June 2026:
Claim 1, 4-13 are pending
Claims 2-3 are cancelled
Claims 1 is amended
Response to Arguments
Applicant's amendments to the claims filed 11 June 2026 have been acknowledged.
Response to Arguments
Applicant’s arguments filed 11 June 2026, with respect to the rejection of Claim 1 under 35 U.S.C. 103 have been fully considered and are persuasive.
On Pages 5-7 of Applicant’s Remarks, Applicant has amended the claims the further recite that the “indent abuts against the consumable” and argues that Plojoux does not teach this additional limitation because the heating needle which Examiner equates to the indent requires insertion into the consumable. Because supposed indent is inserted into the consumable it does not satisfy the requirement that the indent “abuts against the consumable” and thus there is no reason or motivation for one ordinarily skilled in the art to use Plojoux’s disclosure to modify Fallon to arrive at an indent.
Examiner agrees with the Applicant’s arguments and therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Oliana (Publication No. US20230038544A1).
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 1, 4, 7, and 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Fallon et al (Publication No. US20220218033A1) and Oliana (Publication No. US20230038544A1).
Regarding Claim 1, Fallon discloses an aerosol provision (i.e., generating) device (100) comprising:
a tubular heating chamber (101) comprising an opening (104) arranged to receive a consumable (Article 110) (Fig. 2; [0038-0039]; heating chamber comprises a susceptor which is hollow and tubular to receive an article).
a heater/heating element (Susceptor 132) comprising a heating region which extends over a portion of a total length of the tubular heating chamber (see Fig. 2; [0161-0163]; inductor coils 124/126 generate magnetic waves to heat sections of the susceptor; area where the inductor coils wrap around the susceptor to heat said susceptor is considered the heating region);
the heating region comprising a first end closest to an opening (104) and an opposing second end (see annotated Fig. 2);
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an elongate consumable (Article 110) arranged to be received such that it lies along the length of the heating chamber (101) (see Figs. 2, 7b; [0039, 0144]; alternate disclosed embodiments of article 110 are considered equivalent).
the consumable comprising an aerosol substrate (Aerosol generating material 110a/1105) which extends over a portion of the total length of the consumable (see Figs. 2, 7b; [0039, 0144-0145]; alternate disclosed embodiments of article 110 are considered equivalent);
a length of the aerosol substrate (Aerosol-forming material 1105) is greater than a length of the heating region (see annotated Fig. 7b; [0138-0139; 0144-0150, 0184]; heating region defined by heating element 1200 is shorter than the aerosol-forming material 1105; Material 1105 and 110a are considered equivalent; susceptor 132 and heating element 1200 considered equivalent);
the heating chamber and consumable are configured such that, when the consumable is received within the heating chamber (i.e., fully inserted position), such that a second end of the aerosol substrate extends beyond the second end of the heating region (see annotated Fig. 7b; [0145-0149]; the aerosol-forming substrate/material does not overlap with the heating elements which implies extending beyond the heating region defined by the heating elements);
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wherein the opening (104) of the heating chamber (101) comprises an open end (see Fig. 2; opening implies that the end is open);
and the heating chamber comprises an opposing end cap (140) with apertures (141) (see Figs. 2-4; [0079, 0175]).
Fallon further discloses that the end cap (140), when open, provides access (i.e., is in communication) to an inlet conduit (103a) (i.e., air channel) that is fluidly connected (i.e., fluid communication) to the heating chamber (101) and aerosol substrate (110) (Figs. 2, 7; [0037-0039, 0079]; the aerosol substrate consumable is shown inserted into the heating chamber, implying that the conduit will also be in fluid communication with the aerosol substrate when said substrate is in the heating chamber). Fallon also discloses that sound or pressure sensors can be used to control the heating unit in response to a user inhalation [0084].
Fallon does not disclose the following:
first end of the heating region is aligned with a first end of the aerosol substrate such that a second end of the aerosol substrate extends beyond the second end of the heating region;
the opposing end cap is a closed end;
the closed end comprises an indent extending into the heating chamber, the indent partially defining an air channel;
the air channel being in fluid communication with the aerosol substrate when the consumable is received within the heating chamber.
Regarding (I), it should be noted that Fallon does disclose that the extension on the second end (i.e., distance 1001) is the same as the extension on the first end (distance 1002) which acts to collect and/or absorb condensation that would otherwise build up in the device and may have similar lengths (see annotated Fig. 7B above; [0145-0148]). Fallon further discloses that other embodiments may have only one extension (i.e., distance portion) instead of two as illustrated in Figure 7B, such as only having the second portion (1002) (see annotated Fig. 7B above; [0149]; removal of the first portion 1001 implies that the aerosol substrate second end is aligned with the heating region second end).
Therefore, one ordinarily skilled in the art could take Fallon’s disclosure and reasonably construct the heating region to only one extended portion instead of two, wherein the portion that is not extended is rearranged to be located at the first end instead of the second end (i.e., is aligned with the substrate end) as rearrangement of parts where both arrangements are known equivalents is a design choice that gives predictable results (see MPEP § 2144.04.VI.C).
Regarding (II), Oliana, directed to an aerosol-generating device, discloses the use of a vibration sensor instead of a pressure sensor which has the advantage of being more reliable and prone to less error while also capable of detecting a puff/inhalation even if it is separated from the air path in the device [0006]. In particular, Oliana configures the sound sensor with an additional sound generating member (161) to amplify the generated vibrations from airflow in the device [0006], the sound generating member (161) being situated on a wall member (111) which fluidly separates the receiving cavity (120) (Figs. 1-2; [0151]; the wall member with the sound generating member is shown to be a closed end of the cavity 120).
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 sensor and receiving cavity disclosed by Fallon utilize a sound sensor and comprise a closed end with a sound generating member as disclosed by Oliana, as both are directed to an aerosol-generating device, where Oliana teaches the advantage of using a closed end cavity with a sound sensor as it allows reliable detection of a user inhalation for device operation, while enhancing the operability of the sound sensor via the sound generating member attached to the closed end [0006].
Regarding (III-IV), Oliana, directed to an aerosol-generating device, discloses a receiving cavity (120) for receiving an aerosol generating article (190) (Figs. 1-2; [0142]), wherein the cavity comprises a closed distal end surface (123) (see Figs. 1-2; [0147, 0151]; the end surface is located on a wall member 111 which fluidly separates the cavity from other components which makes it equivalent to a closed end).
The distal end of (123) the receiving cavity (120) may further comprise end stops (i.e., indents) which may abut against the aerosol-forming article (190) and prevent it from further insertion into the cavity in order to enable proper redirection of airflow into the aerosol-generating article (190) at the bottom of the cavity upon insertion [0055-0057, 0147]. Though Oliana does not illustrate the end stops as extending into the cavity, one ordinarily skilled in the art would recognize that this is implied as they are arranged on the distal end which is also the direction in which the insertion occurs (see Figs. 1-2). Thus, one ordinarily skilled in the art would recognize that constructing the end stops would require it to extend into the cavity away from the distal end so that the aerosol-generating article’s insertion is impeded.
It is further noted that while Oliana does not explicitly disclose the indent forming an air path, Oliana does illustrate that there is an air path (180) which provides airflow into the device (Fig. 1; [0145]), wherein the end stops are configured to redirect air inside the device cavity [0147], indicating that there is an air channel being formed by the end stops so that air is being fluidly communicated to the substrate.
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to modify closed end disclosed by Modified Fallon to have end stops (i.e., indents) as disclosed by Oliana, as both are directed to an aerosol-generating device, where Oliana teaches the advantage of having end stops to enable proper redirection of airflow into the aerosol-generating article (190) at the bottom of the cavity upon insertion [0055-0057, 0147].
Regarding Claim 4, Fallon further discloses the heating region extends along more than half of the length of the aerosol substrate (110a/1105) from the first end of the aerosol substrate (see annotated Figs. 2, 7b; heating region is shown to extend a long a length of the aerosol substrate/material that is more than half of said substrate’s length).
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Regarding Claim 7, the second end of the aerosol substrate (110a) is at an end of the consumable (Article 100) (see annotated Fig. 2);
and the aligned first ends of the aerosol substrate and heating region are positioned at an intermediate position along the length of the consumable (see annotated Fig. 2; the substrate and heating region first ends are shown to be located approximately halfway down the length of the article/consumable, which is considered equivalent to an intermediate position).
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Regarding Claim 9, Fallon further discloses the aerosol substrate (i.e., aerosol generating material) comprises tobacco ([0033]; tobacco products are disclosed as an example of an aerosol-generating material).
Regarding Claim 10, Fallon further discloses the heater is configured to heat the aerosol substrate to an elevated temperature to release an aerosol, without burning the consumable (see Background section; disclosed that apparatus is known to heat smokable material to form an aerosol without burning, implying that the heater is configured to generate an aerosol without burning).
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Fallon et al (Publication No. US20220218033A1) in view of Oliana (Publication No. US20230038544A1) as applied to Claim 1 above, and further in view of Connor et al (Publication No. US20120067360A1).
Regarding Claim 5, Fallon discloses that the consumable may extend pass the heating region (i.e., extension distance) wherein the distance between the aerosol substrate and heating region (1002) is between 2mm and 10mm [0147]. Fallon does not explicitly disclose the length of the aerosol substrate such that the heating region extends along less than 90% of the length of the aerosol substrate from the first end of the aerosol substrate.
However, Fallon illustrates the heating region extending the length of the substrate (1015) such that the distance between the heating region second end (1001) and the substrate second end appears to be more than 10% of the substrate’s length (i.e., extends less than 90% of the substrate length, see annotated Fig. 7B):
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Alternatively, the prior art discloses several known lengths for an aerosol substrate for a smoking article (i.e., consumable). For example, Connor, directed to a smoking article with an aerosol-generating system, discloses the smoking article (i.e., consumable) comprises an aerosol-generating segment (51) containing tobacco substrate (55) with a length of 10 mm to 22 mm(Fig. 2; [0030, 0032, 0034]).
Since Fallon discloses that the extension distance range is 2 mm to 10 mm, and Connor discloses a known substrate length is 10 mm to 22 mm, one ordinarily skilled in the art could routinely experiment with the substrate and extension lengths within the disclosed ranges, such that the heating region extends along less than 90% of the length of the aerosol substrate from the first end of the aerosol substrate (see MPEP § 2144.05.II).
Therefore, one ordinarily skilled in the art could take the known substrate extension distance range disclosed by Fallon, and the known substrate length range disclosed by Connor, to construct and predictably yield a heating region that extends along less than 90% of the length of the aerosol substrate from the first end of the aerosol substrate through routine experimentation.
Regarding Claim 6, Fallon discloses that the consumable may extend pass the heating region wherein the distance between the aerosol substrate and heating region (1002) is between 2mm and 10mm [0147]. Fallon does not explicitly disclose a substrate length such that the heating region extends along 3/4 - 7/8 of the length of the aerosol substrate from the first end of the aerosol substrate.
However, the prior art discloses several known lengths for an aerosol substrate for a smoking article (i.e., consumable). For example, Connor, directed to a smoking article with an aerosol-generating system, discloses the smoking article (i.e., consumable) comprises an aerosol-generating segment (51) containing tobacco substrate (55) with a length of 10 mm to 22 mm (Fig. 2; [0030, 0032, 0034]).
Since Fallon discloses that the extension distance range is 2 mm to 10 mm, and Connor discloses a known substrate length is 10 mm to 22 mm, one ordinarily skilled in the art could routinely experiment with the substrate and extension lengths within the disclosed ranges, such that the heating region extends along 3/4 - 7/8 of the length of the aerosol substrate from the first end of the aerosol substrate (see MPEP § 2144.05.II).
Therefore, one ordinarily skilled in the art could take the known substrate extension distance range disclosed by Fallon, and the known substrate length range disclosed by Connor, to construct and predictably yield a heating region that extends along 3/4 - 7/8 of the length of the aerosol substrate from the first end of the aerosol substrate.
Claims 8, 12, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Fallon et al (Publication No. US20220218033A1) in view of Oliana (Publication No. US20230038544A1) as applied to Claim 1 above, and further in view of Bauer et al (Publication No. US20230112166A1).
Regarding Claim 8, Fallon further discloses that the consumable (Article 110) may also comprise a cooling structure (i.e., aerosol cooling region) [0178];
Fallon does not explicitly disclose the cooling structure/region is a hollow tubular portion extending over the length of the consumable.
However, Baur, directed to an aerosol-generating system, discloses said an aerosol-generating article (i.e., consumable) further comprising a substrate rod (12), support segment (14), and cooling segment (16) that are longitudinally aligned (i.e., extending over consumable length) (Fig. 1; [0074, 0280]). Baur further discloses that the support and cooling segments may be a hollow tubular segment which encourages nucleation and formation of aerosol droplets (Fig. 1; [0074, 0178-0179]).
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 consumable/article disclosed by Fallon to incorporate a hollow tubular cooling region/structure as disclosed by Baur, as both are directed to an aerosol generating article/consumable, where Baur teaches the advantage of using a cooling region to encourage nucleation and formation of aerosol droplets [0178-0179]; this also involves applying a known technique/teaching to a similar device to yield predictable results.
Regarding Claim 12, Fallon further discloses the opening (104) of the heating chamber comprises an open end (see Fig. 2; opening implies that the end is open);
and the heating chamber comprises an opposing closed end (see Figs. 2-4; [0079, 0175]; end opposite the opening 104 has a lid/cap 140 which is considered equivalent to a closed end when the lid is not open).
Fallon also discloses an outlet conduit (103b) that fluidly connects the heating chamber to the exterior of the device to allow the aerosol to cool and expand before arriving to the user (Figs. 1-2; [0038-0042]), and heating elements surround the heating chamber where, when the heating element is a susceptor, a space is formed between the susceptor and inductor coils (Fig. 11B; [0179, 0184]).
Fallon does not explicitly disclose the heating chamber and the consumable are configured such that, during use, air enters through the open end of the chamber and passes through the air channel between the heating chamber and the consumable to reach the aerosol substrate.
However, Bauer, directed to an aerosol-generating system, discloses and aerosol-generating device (10) with peripheral walls (6) that define a device cavity (i.e., heating chamber) for receiving an aerosol-generating article (1) (Fig. 1; [0029, 0271]).
Bauer further discloses the heating chamber and article/consumable is configured to form air-flow channel (205) which allows air to enter through the open end (Inlet 7) to reach the aerosol substrate (12) via an outlet (9) (Fig. 3; [0283-0284]; the air-flow channel is shown to be between the heating chamber and consumable).
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to configure the heating chamber and consumable disclosed by Fallon to have an air channel between the heating chamber and consumable as disclosed by Bauer, as both are directed to an aerosol-generating device, where one ordinarily skilled in the art can reasonably apply the known air channel configuration disclosed by Bauer, to a similar device as disclosed by Fallon, and expect to predictably result in a device that lets air enter through the open end of a heating chamber and pass between the chamber and consumable to reach the aerosol substrate.
Regarding Claim 13, Modified Fallon does not explicitly disclose the heating chamber and the consumable are arranged such that the air channel passes the heating region so as to pre-heat the air before the air reaches the aerosol substrate.
However, it should be noted that modified Fallon discloses that the heating element surrounds the heating chamber (Fallon, Fig. 11B; [0179, 0184]) and that the heating chamber and article/consumable is configured to form air-flow channel (205) between the chamber and consumable which allows air to enter through the open end (Inlet 7) to reach the aerosol substrate (12) via an outlet (9) (Fig. 3; [0283-0284]; see Claim 12 rejection for modification justification).
Therefore, one ordinarily skilled in the art would reasonably assume that when the air flows inside the heating chamber, said air would get heated by the heating elements around the heating chamber, before said air flows into the aerosol substrate (i.e., pre-heating of air).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Fallon et al (Publication No. US20220218033A1) in view of Oliana (Publication No. US20230038544A1) as applied to Claim 10 above, and further in view of Shinozaki et al (Publication No. US20130133675A1).
Regarding Claim 11, Fallon discloses that the heater is configured to heat air to a temperature greater than or equal to 120°C ([0050-0051]; various types of heating elements are disclosed which are considered equivalent to a heater; the range of 120°C and higher overlap with the instant claim’s range of 150°C and 350°C).
Fallon does not explicitly disclose the heater is configured to heat the aerosol substrate to a maximum temperature between 150°C and 350°C.
However, Shinozaki, directed to a smokeless inhaler, discloses a heater and cooling element configured to heat a tobacco material (i.e., aerosol substrate) to a temperature of 50°C to 200°C. The maximum temperature that the inhaler is capable of heating a tobacco product to (200°C) is within the range disclosed by Fallon (between 150°C and 350°C) and is therefore considered prima facie obvious (see MPEP § 2144.05.I).
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, configure the heater disclosed by Fallon to heat an aerosol substrate (i.e., tobacco material) to a maximum temperature of 200°C as disclosed by Shinozaki, as both are directed to an aerosol generating/inhaler device, where one ordinarily skilled in the art can reasonably apply Shinozaki’s teaching regarding heating temperatures to a similar device disclosed by Fallon, and yield and expected result of heating and not burning the aerosol generating material to produce an aerosol.
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
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