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
Claim 1 is amended. Claim 2 is cancelled. Claims 4 and 5 are withdrawn. Claims 1 and 3 are presently examined.
Applicant’s arguments regarding the rejections under 35 USC 103 have been fully considered and are persuasive. The rejections of 9/4/2025 are overcome.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/4/2025 has been entered.
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.
Claims 1 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Ding (US 10,736,358) in view of Davis (US 2018/0154103).
Regarding claim 1, Ding discloses a flue cured tobacco device (abstract) having a fixing canister (figure 1, reference numeral 10), which is considered to meet the claim limitation of an accommodation passage, that accommodates a cigarette (figure 1, reference numeral 2) so that is can be heated by a heating element (column 5, lines 50-67, column 6, lines 1-26). The device is controlled by a controller (column 7, lines 27-67, column 8, lines 1-10, figure 1, reference numeral 6). The device has a connecting board at its top (column 6, lines 27-37, figure 1, reference numeral 131), which is considered to meet the claim limitation of a cover. A cover board is provided between the connecting board and the shell and is closed when no cigarette is inserted into the device to keep the device clean and open when the cigarette is inserted (column 6, lines 38-47, figure 1, reference numeral 132), which is considered to meet the claim limitation of a door. The controller executes control operations based on signals it receives (column 4, lines 28-32). Ding does not explicitly disclose (a) the controller operating the heater based on the cover board position and (b) the heater operating in first and second modes.
Regarding (a), Davis teaches a vaporizer apparatus for a compressed tablet that releases medicinal ingredients having therapeutic efficacy (abstract) that has a sensor that detects when the lid to the apparatus is open or closed, allowing for auto-on when the lid is open and auto-off when the lid is closed [0131].
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 device of Ding with the automatic control of Davis. One would have been motivated to do so since Davis teaches a device that functions automatically. To provide a mechanical or automatic means to replace manual activity, which accomplishes the same result, is within the ambit of a person of ordinary skill in the art. See MPEP § 2144.04.
Regarding (b), Davis teaches a vaporizer apparatus for a compressed tablet that releases medicinal ingredients having therapeutic efficacy (abstract) having a microcontroller that varies the temperature profile over a set period of time in order to target specific therapeutic compounds [0012]. It is evident that this profile begins when an auto-on occurs since the control process is pre-programmed [0147] in the microprocessor [0172]. It is evident that the temperature must vary either up or down. The materials are tobacco or other plant materials [0058].
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to determine through routine experimentation that the temperature should be raised in a second heating mode of a temperature profile. One would have been motivated to do so since Davis teaches a temperature profile that is adjusted over time to target specific therapeutic compounds from the smoke materials. The courts have held that, “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See MPEP § 2144.05 II.
Regarding claim 3, Davis teaches that the heater state is changed when the door is opened or closed [0131].
Response to Arguments
Regarding the rejections under 35 USC 103, applicant’s arguments have been fully considered but they are not persuasive. Applicant argues that Davis does not teach a first heating mode that transitions to a second heating mode with a higher target temperature at a specific time. However, Davis teaches that the control program is based on a microprocessor that operates according to a temperature profile over a set period of time [0052]. Indeed, applicant admits at page 7 of amendment filed 1/20/2026, that “Davis merely described a temperature change… based on time.” This must mean that the temperature changes at a specific time. How else would the temperature change based on time occur if not at a specific time? If the change is not based on some specific time then it is not a change triggered by time, it is a change triggered by something else.
Furthermore, applicant’s claims do not require that the transition to the second heating mode occur based on an elapsed time. In fact the claims do not specify any criterion at all that causes the second heating mode to begin. The amendment filed 1/20/2026 added the limitation “based on completing of the first heating mode identified based on the position change of the door,” however, the limitation “identified based on the position change of the door” refers to the first heating mode, which begins when Davis performs an auto-on when the door is opened. It has nothing at all to do with when the second heating mode begins. Any trigger, from lid movement to elapsed time to user input, could cause that transition under the broadest reasonable interpretation of applicant’s claims.
Even the use of the word “completing” does not necessarily imply a specific trigger. No requirement is given as to what completion is. Does it mean that the first target temperature is reached, that a specific amount of time has elapsed, that the user provides an input indicating that the user believes the first heating mode has been completed, allowing a certain amount of time to elapse after reaching the first target temperature, or that the user now desires to transition to the second heating mode? In short “completing” without more can refer to any point at which the first heating mode is stopped.
Finally, applicant’s specification does not support trigger both the first and second heating modes based on door movements. [0138] indicates that one heating may begin when the door is moved to the open position from the closed position, which corresponds with the claimed first heating mode. However, [0138] does not disclose using door movement to start a second, different heating mode. [0138] is also only directed to using the door opening to trigger heating. In the instant claims, the door is opened at the start of the first heating mode. It cannot be opened a second time to transition to the second heating mode since it was never closed.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RUSSELL E SPARKS/ Primary Examiner, Art Unit 1755
Prosecution Insights