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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/03/2025 (“Amendment”) has been entered, which includes amendments to claims 1 and 14 and remarks therewith. Claims 1-20 remain pending. A new ground of rejection under 35 USC 103 is set forth below. Claims 6-7 and 17-18 remain indicated as containing allowable subject matter.
Response to Arguments
Applicant’s arguments with respect to the rejection of claim 1 under 35 USC 103 (Amendment p. 6-8) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Specifically, the new ground of rejection presents a different modification of Hon wherein Buchberger’s heat shield 79 is incorporated into Hon’s electronic cigarette, rather than modifying Hon’s collector 30 as previously set forth in the Final Rejection mailed 09/03/2025 at p. 7.
To the extent that Applicant’s arguments regarding Buchberger (Amendment p. 8) may be similarly applied to the rejection of claim 1 set forth below, the Examiner respectfully disagrees. Buchberger’s heat shield 79 is positioned between the heated member 60a and liquid matrices 77, 78, and the proposed modification similarly positions the heat shield 79 between Hon’s heating coil 40 and liquid absorbing mesh 32. Modified Hon uses Buchberger’s heat shield 79 for the same purpose as disclosed in Buchberger – to protect a liquid-containing component from overheating due to proximity with a heated element. Even though Hon and Buchberger are silent on blocking line of sight as claimed, the resulting combination blocks line of sight because the heat shield 79 is a continuous material positioned across the flow path (see Hon Figs. 1-2). In general, motivation for combining prior art need not be the same as Applicant’s motivation for including certain claim elements. MPEP 2144(IV); see In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006).
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.
Claims 1-2, 4-5, 8-10, 14, 16, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Hon (WO 2013/155645 A1, previously cited) in view of Buchberger (WO 2015/114327 A1, previously cited).
Regarding claim 1, Hon discloses an electronic cigarette with a flow path from an air inlet 18 to an outlet 42 ([0017-18], Figs. 1-2, reproduced below), which reads on an “aerosol generating device defining a flow path from an air inlet to an inhalable medium outlet”. The electronic cigarette includes:
a liquid storage 34 (“container”);
a mesh 32 (“wick”) for wicking liquid from the storage 34;
a heater coil 40 (“heating element”) in a heater support 28 which heats air upstream of the mesh 32, and;
a collector 30 positioned within the flow path between the heater coil 40 and mesh 32 ([0014-18], Fig. 1). The collector 30 is a silicon elastomer or plastic material which may help to collect and direct heated air therethrough, and may also be used to space apart the mesh 32 and coil 40 ([0015-16, 0018], Fig. 1), which reads on “a shield element in the flow path, intermediate of the heater and the wick, to shield the wick from the heating element” as claimed. Spacing apart the mesh 32 and coil 40 advantageously avoids liquid contacting the coil 40 [0022-24].
However, the flow path runs through a central gap in the collector 30 ([0015], Fig. 2), and thus the collector 30 fails to “block[s] a line of sight from the heating element to the wick and the inhalable medium outlet” as claimed.
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Buchberger is directed to an aerosol-forming member (Title). Buchberger discloses an aerosol delivery device 51 with a chamber 56 accommodating two aerosol-forming members 60a and liquid reservoir matrices 77, 78 (p. 15, l. 18-35; Fig. 10, reproduced below). One or more heat shields 79 are placed along the matrices 77, 78 in order to protect them from overheating as the temperature of the aerosol-forming member 60a increases (p. 16, l. 6-15). One of ordinary skill in the art would recognize that placing such a heat shield 79 between Hon’s mesh 32 and coil 40 would similarly protect Hon’s mesh 32 from overheating as the temperature of the coil 40 increases. Buchberger’s heat shields 79 are formed from a thin non-conductive material like oxidized stainless steel or inert fabrics like glass or carbon fabrics (p. 16 l. 13-15). The heat shields 79 are porous so as to enable a capillary effect across the liquid matrices 77, 78 (p. 16, l. 11-12). One of ordinary skill in the art would expect the heat shields 79 to be similarly porous to air.
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Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Hon by incorporating Buchberger’s porous heat shield 79 into Hon’s device between the heating coil 40 and the mesh 32, for instance on a surface of the mesh 32 facing the collector 30 (which reads on “a shield element in the flow path, intermediate of the heater and the wick, to shield the wick from the heating element” and “wherein the shield element blocks a line of sight from the heating element to the wick and the inhalable medium outlet”), because both Hon and Buchberger are directed to electronic aerosolization devices, Buchberger teaches using the heat shield 79 to protect the liquid matrices from overheating which one of ordinary skill in the art would recognize is similarly applicable to Hon’s spaced apart mesh 32 and coil 40, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Regarding claim 2, Hon’s electronic cigarette includes a housing 10 (“body”) containing the liquid storage 34 and the heater coil 40 ([0014], Fig. 1), which reads on “the body comprising the heating element”. The liquid storage 34 (“container”) may be provided in a “separate component or cartridge” [0014], which one of ordinary skill in the art would recognize as being detachable from the housing 10, which reads on “an aerosol generating article releasably connected to the body…the aerosol generating article comprising the container”.
Regarding claim 4, Hon discloses that the heater coil 40 heats incoming air to 200-300 °C at the exit of the passageway [0018], which reads on the claimed range of 100-400 °C. The exit of the passageway leads immediately to the mesh 32 as shown in Fig. 2, which reads on the claimed temperature “at the wick”.
Regarding claims 5 and 8, modified Hon discloses the air-porous heat shield 79 as set forth above in the discussion of claim 1, which would extend entirely across the cross section of the flow path shown in Hon’s Figs. 1-2 (for the same reasons as set forth above, i.e., to fully shield the mesh 32 from the coil 40), which therefore reads on “wherein the shield element comprises a first element extending across a first portion of a cross section of the flow path” per claim 5 and “wherein the shield element extends across an entire cross section of the flow path and comprises one or more perforations to allow air to pass through the shield element” per claim 8.
Regarding claim 9, the mesh 32 extends across the entire cross section as shown in Figs. 1-2, and thus has a portion “radially offset from a central longitudinal axis” as claimed. Such a portion of the mesh 32 is “exposed to the flow of heater air generated in use” as claimed because it faces the collector 30 and some heated air could contact it, even though the collector 30 directs the majority of air through the radial center (see Figs. 1-2). Alternatively, modifying the collector 30 and mesh 32 to direct air through the mesh 32 at a radially offset position would be a mere rearrangement of parts which is within the purview of the skilled artisan. MPEP 2144.04(VI)(C); in re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950).
Regarding claim 10, the liquid storage 34 has a central opening 36 (“channel”) which defines a portion of the flow path ([0017], Figs. 1-2).
Regarding claim 14, Hon discloses an electronic cigarette with a flow path from an air inlet 18 to an outlet 42 ([0017-18], Figs. 1-2, reproduced below), which reads on an “aerosol generating article for an aerosol generating device, the aerosol generating article defining a flow path from an air inlet to an inhalable medium outlet”. The electronic cigarette includes the following components which together read on the claimed “article”:
a liquid storage 34 (“container”);
a mesh 32 (“wick”) for wicking liquid from the storage 34;
a heater coil 40 (“heating element”) in a heater support 28 which heats air upstream of the mesh 32, and;
a collector 30 positioned within the flow path between the heater coil 40 and mesh 32 ([0014-18], Fig. 1). The collector 30 is a silicon elastomer or plastic material which may help to collect and direct heated air therethrough, and may also be used to space apart the mesh 32 and coil 40 ([0015-16, 0018], Fig. 1), which reads on “a shield element in the flow path, intermediate of the heater and the wick, to shield the wick from the heating element” as claimed. Spacing apart the mesh 32 and coil 40 advantageously avoids liquid contacting the coil 40 [0022-24].
However, the flow path runs through a central gap in the collector 30 ([0015], Fig. 2), and thus the collector 30 fails to “block[s] a line of sight from the heating element to the wick and the inhalable medium outlet” as claimed.
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Buchberger is directed to an aerosol-forming member (Title). Buchberger discloses an aerosol delivery device 51 with a chamber 56 accommodating two aerosol-forming members 60a and liquid reservoir matrices 77, 78 (p. 15, l. 18-35; Fig. 10, reproduced below). One or more heat shields 79 are placed along the matrices 77, 78 in order to protect them from overheating as the temperature of the aerosol-forming member 60a increases (p. 16, l. 6-15). One of ordinary skill in the art would recognize that placing such a heat shield 79 between Hon’s mesh 32 and coil 40 would similarly protect Hon’s mesh 32 from overheating as the temperature of the coil 40 increases. Buchberger’s heat shields 79 are formed from a thin non-conductive material like oxidized stainless steel or inert fabrics like glass or carbon fabrics (p. 16 l. 13-15). The heat shields 79 are porous so as to enable a capillary effect across the liquid matrices 77, 78 (p. 16, l. 11-12). One of ordinary skill in the art would expect the heat shields 79 to be similarly porous to air.
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Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Hon by incorporating Buchberger’s porous heat shield 79 into Hon’s device between the heating coil 40 and the mesh 32, for instance on a surface of the mesh 32 facing the collector 30 (which reads on “a shield element in the flow path, intermediate of the heater and the wick, to shield the wick from the heating element” and “wherein the shield element blocks a line of sight from the heating element to the wick and the inhalable medium outlet”), because both Hon and Buchberger are directed to electronic aerosolization devices, Buchberger teaches using the heat shield 79 to protect the liquid matrices from overheating which one of ordinary skill in the art would recognize is similarly applicable to Hon’s spaced apart mesh 32 and coil 40, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Regarding claims 16 and 19, modified Hon discloses the air-porous heat shield 79 as set forth above in the discussion of claim 14, which would extend entirely across the cross section of the flow path shown in Hon’s Figs. 1-2 (for the same reasons as set forth above, i.e., to fully shield the mesh 32 from the coil 40), which therefore reads on “wherein the shield element comprises a first element extending across a first portion of a cross section of the flow path” per claim 16 and “wherein the shield element extends across an entire cross section of the flow path and comprises one or more perforations to allow air to pass through the shield element” per claim 19.
Regarding claim 20, the mesh 32 extends across the entire cross section as shown in Figs. 1-2, and thus has a portion “radially offset from a central longitudinal axis” as claimed. Such a portion of the mesh 32 is “exposed to the flow of heater air generated in use” as claimed because it faces the collector 30 and some heated air could contact it, even though the collector 30 directs the majority of air through the radial center (see Figs. 1-2). Alternatively, modifying the collector 30 and mesh 32 to direct air through the mesh 32 at a radially offset position would be a mere rearrangement of parts which is within the purview of the skilled artisan. MPEP 2144.04(VI)(C); in re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950).
Claims 3 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Hon (WO 2013/155645 A1) in view of Buchberger (WO 2015/114327 A1) as applied to claim 1, further in view of Emarlou (US 2009/0095287 A1, previously cited).
Regarding claim 3, Hon discloses a sensor 20 and circuit board 24 which detect a user’s inhalation and supply electricity to the heater coil 40 [0018]. Hon also discloses that the amount of heating may vary by design [0018]. However, Hon fails to explicitly disclose “a heating element controller to allow a user to control the degree to which inlet air from the air inlet is heated by the heating element in use”. Means for controlling temperature of a heater are well-known in the art of electronic vaporization devices.
Emarlou is directed to a system for vaporization of a substance (Title). Emarlou discloses a convection apparatus 10 including a time and temperature control means which may be affected by a user pressing buttons [0024]. This arrangement is easy to use and provides accurate temperature control and air flow [0001].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hon by incorporating a time and temperature control means into the electronic cigarette, or by configuring Hon’s sensor 20 and circuit board 24 to be such a time and temperature control means, and further to incorporate buttons pressable by a user to adjust the temperature of the heating coil 40 as taught by Emarlou, because both Hon and Emarlou are directed to electronic vaporization devices, Hon encourages heating variations, Emarlou teaches that the arrangement is easy for a user to use and provides accurate temperature control, temperature control is well-known in the art, and this would involve the use of a known technique to improve a similar device in the same way. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Regarding claim 13, Hon discloses a sensor 20 and circuit board 24 near the air inlet 18 which detects a user’s inhalation [0018]. However, Hon fails to explicitly disclose “an inlet controller” as claimed. Means for controlling airflow are well-known in the art of electronic vaporization devices.
Emarlou discloses suction means for the apparatus 10, which may be a component capable of electrically communicating with an information means [0015]. The suction means may be controlled by the information means to adjust the heater temperature [0013]. This arrangement is easy to use and provides accurate temperature control and air flow [0001].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hon by incorporating a suction means capable of electrically communicating with an information means into the electronic cigarette, or by configuring Hon’s sensor 20 and circuit board 24 to be such suction and/or information means, because both Hon and Emarlou are directed to electronic vaporization devices, Emarlou teaches that the arrangement is easy for a user to use and provides accurate temperature control and air flow, airflow control is well-known in the art, and this involves use of a known technique to improve a similar device in the same way. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Hon (WO 2013/155645 A1) in view of Buchberger (WO 2015/114327 A1) as applied to claim 10, further in view of Tschierske (EP 2989912 A1, previously cited).
Regarding claims 11-12, Hon discloses the central opening 36 of the liquid storage 34 as set forth above ([0017], Figs. 1-2). However, Hon fails to explicitly disclose the central opening 36 defining a “receiving portion comprising one or more retaining elements for retaining a flavor element” per claim 11 and Hon fails to disclose “the flavor element received in the receiving portion in use to be one or more of manually inserted, removed, or replaced in the receiving portion” per claim 12.
Tschierske is directed to an electronic smoking device (Title). The device 1 includes flavoured materials 11, 12 within flavour carrying units 9, 10 which are positioned in a flow path 8 downstream of a heating element 4 and vaporized liquid 7 ([0013], Figs. 1-4). A user can recharge the units 9, 10 with material 11, 12 and can selectively rotate the units 9, 10 into or out of the flow path 8 (which reads on “replaced” per claim 12) [0015-18]. This arrangement of rotatable, refillable flavour carrying units 9, 10 allows a user to change flavors quickly without opening the device 1 [0002, 0007, 0015].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hon by incorporating Tschierske’s selectively rotatable and refillable units 9, 10 with flavour material 11, 12 into Hon’s central opening 36, because both Hon and Tschierske are directed to electronic smoking devices, Tschierkse teaches that this provides convenient flavor selection to a user, and this involves use of a known technique to improve a similar device in the same way. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Hon (WO 2013/155645 A1) in view of Buchberger (WO 2015/114327 A1) as applied to claim 14, further in view of Verleur (US 2016/0278436 A1, previously cited).
Modified Hon discloses the components which together form an “aerosol generating article”, as set forth above in the discussion of claim 14. Also, Hon’s liquid storage 34 may be provided in a separate component or cartridge [0014]. However, modified Hon fails to disclose the components together forming an article which is “releasably connectable to the aerosol generating device” as claimed.
Verleur is directed to a vaporizer with a shell and a cartomizer receivable within the shell (Abstract). The cartomizer includes a body for holding vaporizable fluid, a wicking element, and a heating element [0044-45]. The cartomizer may be removable from the vaporizer shell [0062]. This arrangement allows for disposal and replacement of the cartomizer while preserving the more costly battery and associated circuitry [0003]. Detachable cartomizers are well-known in the art of electronic vaporization devices.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to further modify Hon by arranging at least the liquid storage 34, mesh 32, heating coil 40, collector 30, and heat shield 79 together as a cartomizer unit removable from the remainder of Hon’s electronic cigarette as taught by Verleur, because both Hon and Verleur are directed to electronic vaporization devices, Verleur teaches that this allows for convenient replacement of less expensive components, detachable cartomizers are well-known in the art, and this involves use of a known technique to improve a similar device in the same way.
Allowable Subject Matter
Claims 6-7 and 17-18 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: Hon (WO 2013/155645 A1) and Buchberger (WO 2015/114327 A1) are the closest prior art of record. Modified Hon includes the heat shield 79 (“shield element”) as set forth above in the discussions of claims 1 and 14. However, modified Hon fails to disclose a “second element” of the shield element which is downstream of the first element and extends across a partially or totally different second portion of the flow path cross section, as recited in claims 6 and 17. Thus, the prior art of record fails to teach or suggest the limitations recited in claims 6-7 and 17-18 (claims 7 and 18 are dependent on claims 6 and 17, respectively).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL PATRICK MULLEN whose telephone number is (571)272-2373. The examiner can normally be reached M-F 10-7 ET.
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/MICHAEL PATRICK MULLEN/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747