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 .
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.
The Supreme Court in KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 U.S.C. 103 should be made explicit.
EXEMPLARY RATIONALES
Exemplary rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
Claim(s) 1-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Qiu (US 2012/0199663A1) in view of Chen (US 2015/0342258A1)
Qiu discloses in reference to claim:
1. A capsule 10 of an aerosol-generating system, comprising:
a first housing 20 defining a reservoir 21 having an opening (area closed by element 23), the reservoir 21 configured to contain an aerosol-generating substrate ; the opening leading to a port E that extends away from the bottom surface of the reservoir, the port having a smaller cross-sectional flow area d than the reservoir D; and a sealing element 23 across a second side of the opening opposite a first side, the sealing element 23 defining the port when pierced by piercing elements 322 configured to release the aerosol-generating substrate.
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Qiu does not explicitly disclose a retention material along a bottom surface of the reservoir and covering a first side of the opening such that the first side of the opening is obstructed by the retention material.
Chen discloses it is known to provide a retention material covering a first side of an opening at the bottom surface of a reservoir that is to be pierced such that the first side of the opening is obstructed by the retention material.
Specifically, Chen teaches a capsule 40 of an aerosol-generating system, comprising:
a first housing 414 defining a reservoir 43 having an opening in a bottom surface of the reservoir (area closed by element 44), the reservoir configured to contain an aerosol-generating substrate ; the opening leading to a port 430 at the bottom surface of the reservoir, a retention material 45 along a bottom surface of the reservoir and covering a first side (interior) of the opening such that the first side of the opening is obstructed by the retention material 45; and a sealing element 44 across a second side (exterior) of the opening opposite the first side, the sealing element 44 defining the port when pierced by piercing elements 255/263 configured to release the aerosol-generating substrate.
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It would have been obvious to one of skill in the art to modify the Qiu device to include the retention material 45 as taught by Chen such that the retention material 45 may be located within the reservoir chamber and be adjacent to the opening and further wherein the retention material covers the opening resiliently, such that when the sealing member is pierced through and the piercing members are removed, the opening will be covered to prevent leakage even after the sealing member is pierced.
2. The capsule according to claim 1, wherein the sealing element 23 is configured to be pierceable.
3. The capsule according to claim 1, wherein the retention material 22 is configured to retain the aerosol-generating substrate such that the aerosol- generating substrate is prevented from traversing the opening without an aide.
4. An aerosol-generating system 1 comprising:
a capsule 20 configured to contain an aerosol-generating substrate including retention material 22 along a bottom surface of the capsule and covering an opening on the bottom surface of the capsule 20 a retention material along a bottom surface of the reservoir and covering a first side of the opening such that the first side of the opening is obstructed by the retention material, the opening leading to a port E that extends away from the bottom surface of the capsule/reservoir; and a sealing element 23 across a second side of the opening opposite the first side, the sealing clement defining a port when pierced by 322 configured to release the aerosol-generating substrate when pierced and
a vaporizing unit 30 configured to be releasably connected to the capsule 20, the vaporizing unit including a second housing 330, a transfer element 323, and
a heating element 311, the second housing including a proximal side, an opposing distal side, and an elongate element 322 extending from the proximal side, the elongate element of the second housing of the vaporizing unit configured to pierce a
sealing element 23 of the capsule 20 and extend into the retention material such that the elongate element 322 transports the aerosol-generating substrate out of the capsule 20 into reservoir room 313.
5. The system according to claim 4, wherein the retention material 22 is configured to prevent the aerosol-generating substrate from traversing the opening based on the elongate element being disengaged with the capsule.
6. The system according to claim 4, further comprising:
a cover 10/41 configured to be disposed over the capsule and the vaporizing unit.
7. The system according to claim 4, further comprising:
a sheath 312 surrounding the transfer element 323.
10. (New) The capsule according to claim 1, wherein the retention material (being positioned at A)is entirely within the first housing 20.
11. (New) The system according to claim 4, wherein the retention material (being positioned at A) is entirely within the capsule 10.
Claim(s) 8-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Qiu (US 2012/0199663A1) in view of Chen and further in view of Sarstedt (US 5755701).
Qiu in view of Chen discloses the claimed invention except in reference to claims:
8. (Original) The system according to claim 7, wherein the sheath is a retractable sheath.
9. (Original) The system according to claim 8, wherein the sheath includes a biasing element, the sheath being configured to retract upon application of force to expose the transfer element.
Qiu discloses the transfer element 322 with extended piercing means 322 but fails to teach a retractable sheath as claimed.
Sarstedt teaches a fluid transfer element 1 including an extended piercing means 9 wherein said piercing means is provided with a retractable sheath 13 which includes a biasing element (disclosed as a rubber sheath that compresses under force), the sheath being configured to retract upon application of force to expose the transfer element 9.
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Sarstedt teaches the provision of such a sheath as a protective means for the user. As such it would have been an obvious improvement to the Qiu device to provide a retractable sheath as taught by Sarstedt as a means of providing an added precaution against injury from the piercing tip 322.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-11 have been considered but are moot because the new ground of rejection does not rely on any reference strictly as applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Note that Qiu is no longer relied upon to teach the retention material as the limitations regarding the retention material have been amended. Chen is cited to teach the use of such a retention material as known in the art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOR S CAMPBELL whose telephone number is (571)272-4776. The examiner can normally be reached M,W-F 6:30-10:30, 12-4.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ibrahime Abraham can be reached on 5712705569. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THOR S CAMPBELL/
Primary Examiner
Art Unit 3761
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