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 2 is cancelled. Claims 4 and 5 are withdrawn. Claims 1 and 3 are presently examined.
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.
Claims 1 and 3 are 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.
Regarding claim 1, the claim recites the limitation “based on completing of the first heating mode identified based on the position change of the door.” It is unclear how the completing of the first heating mode is defined. The completion cannot be defined by a position change of the door, since the first heating mode was triggered by opening of the door to accommodate the cigarette, and the door cannot be closed while the cigarette remains inserted. The position change of the door in this limitation must therefore refer back to the position change that began the first heating mode. There are therefore any number of other triggers that could be used, and it is unclear which ones are included or excluded from the metes and bounds of the claims. The claim is therefore indefinite. For the purposes of this Office action, the limitation will be interpreted as if it did not require any specific trigger to move between the two heating modes, just that two heating modes exist with some form of transition between them. Claim 3 is indefinite by dependence.
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) and McCullough (US 9,380,813).
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), McCullough teaches a drug delivery system that heats a substrate to volatilize it (abstract) in which a heating element pre-heats a drug delivery cartridge to a temperature less than the volatilizing temperature of the cartridge so that the cartridge can be readily volatilized upon user demand, but only heats to a temperature above the volatilizing temperature when the user demand is actually received (column 15, lines 13-23). The preheating begins when a user sets a power switch to ‘on’ (column 15, lines 45-59).
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 pre-heating control method of McCullough. One would have been motivated to do so since McCullough teaches a method that allows a substance to be readily volatilized upon user demand.
Regarding claim 3, Davis teaches that the heater state is changed when the door is opened or closed [0131].
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) and Farine (US 11,617,395).
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), Farine teaches a method of controlling a heater in an aerosol generating element (abstract) in which the power provided to the heating element is gradually increased (column 7, lines 1-21). The controller sets a target temperature T1 which is used as the target temperature for a pre-determined period of time t1, and then transitions to a higher target temperature T2 after the time t1 has elapsed (column 7, lines 23-45). Farine additionally teaches that gradually increasing the power results in more efficient heating of the aerosol forming substrate (column 2, lines 42-54).
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 control method of Farine. One would have been motivated to do so since Farine teaches that gradually increasing the power to a heating element results in more efficient heating of the aerosol forming substrate.
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 (a) that the claims require a two-stage sequence of heating, (b) that Davis only teaches a time-based temperature profile, (c) that the reliance on routine experimentation is improper, and (d) that the dependent claim is allowable due to dependence on an allowable claim.
Regarding (a), applicant states that the specification discloses two structured heating modes, but even the portions of specification referred to by applicant contains no disclosure of how completion of the first heating mode is determined. Does the first heating mode continue for a predetermined time period? Does it continue until the first target temperature is reached? Does it continue until a user indicates to the controller that the user desires for the first heating mode to conclude? There is nothing in the specification that specifies what specifically the trigger is. This reasoning also supports the conclusion that the claim is indefinite.
The trigger for both the first and second heating modes cannot be 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. The limitation “based on completing of the first heating mode identified based on the position change of the door” is considered to refer to the position change of the door that triggered the commencement of operation of the heater at the first heating mode.
Regarding (b), Davis is relied upon only to teach activating the heater when a door is opened.
Regarding (c), this reasoning is not relied upon the instant Office action.
Regarding (d), all examined claims, including the examined independent claim, are rejected as set forth above.
Conclusion
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.
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/RUSSELL E SPARKS/ Primary Examiner, Art Unit 1755
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