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 .
Election/Restrictions
Claims 10-29 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on December 16, 2025.
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.
Claim 9 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 9 recites the limitation "the aerosol distribution column" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-5 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by YANEZ (WO 2018/189195).
Yanez teaches a non-combustible aerosol provision device comprising a receptacle (420 in figure 4) that defines a rod-shaped consumable receiving space; and a vaporizer (401) for generating an aerosol from an aerosol precursor material, wherein the vaporizer communicates with the rod-shaped consumable receiving space so that, in use, aerosol may pass from the vaporizer and into a rod-shaped consumable received within the rod-shaped consumable receiving space (abstract).
Regarding claim 2, Yanez teaches an aerosol distribution column (460) that upstands from a base of the receptacle and into the rod shaped consumable receiving space, so that, in use, the rod shaped consumable may be placed over the aerosol distribution column so that the aerosol distribution column extends within the rod shaped consumable, and wherein the aerosol distribution column is configured to introduce aerosol directly into the rod shaped consumable received within the rod shaped consumable receiving space.
Regarding claim 3, Yanez teaches an internal bore of the aerosol distribution column communicates the vaporizer with an aperture in the aerosol distribution column, so that aerosol may pass from the vaporizer, through the aperture and into the rod-shaped consumable received within the rod-shaped consumable receiving space (page 1 lines 23-25).
Regarding claim 4, figure 4 shows the internal bore communicates with a plurality of apertures (462) spaced along a length of the aerosol distribution column.
Regarding claim 5, figure 4 shows a lowermost aperture of the plurality of apertures is positioned between 10% and 50% of the way along the length of the aerosol distribution column, measured from the base of the receptacle.
Claim(s) 1, 6-9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by KIM et al. (WO 2020/101213, wherein US 2020/0345066 has been used as an English language equivalent).
Kim teaches a non-combustible aerosol provision device comprising a receptacle (42 in figure 6) that defines a rod-shaped consumable receiving space; and a vaporizer (53) for generating an aerosol from an aerosol precursor material, wherein the vaporizer communicates with the rod-shaped consumable receiving space so that, in use, aerosol may pass from the vaporizer and into a rod-shaped consumable received within the rod-shaped consumable receiving space (see airflow arrows in figure 6).
Regarding claim 6, Kim teaches a heater (43 in figure 6) configured to heat the rod-shaped consumable receiving space.
Regarding claim 7, Kim teaches the heater comprises an inductor coil that extends around the receptacle (para. 0043).
Regarding claim 8. Kim teaches the receptacle comprises a cylindrical wall (42), and wherein the cylindrical wall is configured to be inductively heated by the inductor coil (para. 0043).
Regarding claim 9, Kim teaches the aerosol distribution column is configured to be inductively heated by the inductor coil (para. 0043).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 and 9 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 of copending Application No. 18/040059 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because instant claim 1 is taught by copending claims 1 and 2. Instant claim 9 is taught by copending claim 1.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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/CYNTHIA SZEWCZYK/Primary Examiner, Art Unit 1741