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 .
Information Disclosure Statement
The information disclosure statements (IDS) filed on 9/24/2025 and 12/10/2025 have been considered by the Examiner.
Reissue Applications
For reissue applications filed on or after September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the current provisions.
The instant application was filed June 2, 2023 and it is a continuation of Reissue application No. 17/507,513, that is a broadening application of U.S. Patent No. 10,448,673 to Gill et al.
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.
Claims 14, 16, 17, 19, 20, and 27-29 are rejected under 35 U.S.C. 103 as being unpatentable over Mironov et al., WO 2015/177294 (“Mironov ‘294”) in view of Tritz et al., WO 2013/068337 (“Tritz”) and Zuber et al., US 2014/0345634 (“Zuber”)(all references previously cited).
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Regarding claim 14, Mironov ‘294 discloses an electronic vapor inhaler (200) comprising an elongated housing extending between a proximal end and a distal end (abstract, page 8 lines 6-9, page 8 lines 25-34, page 17 lines 1-7, page 18 line 11-page 20 line 11, figs. 3-5). The elongated housing comprises a chamber (230) configured to accept a removable aerosol-generating article (20) having a distal end and an opposite proximal end (page 8 lines 25-34, page 17 lines 1-7, page 18 line 11-page 20 line 11, figs. 3-5).
Figures 4 and 5 of Mironov ‘294 illustrating a smoking article comprising a chamber for receiving a removable aerosol-generating article.
The chamber (230) comprises an inductor (210) which is in the form of one or more coils that surround the chamber (page 15 lines 13-14, page 19 line 24-page 20 line 11, figs. 4 and 5). The chamber configured to accept a removable aerosol-generating article corresponds to the claimed chamber positioned in the housing. The inductor portion which is in the form of one or more coils that surround the chamber corresponds to the claimed induction heating arrangement present at a location in the housing wherein the induction heating arrangement encircles the chamber.
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Annotated figure 3 of Mironov ‘294 illustrating the disclosed
removable aerosol-generating article comprising a susceptor.
The aerosol-generating article (10) is a cylindrical rod having a side extending between a distal end (80) and a mouth end (70) (i.e., a proximal end) wherein the aerosol-generating article (10) comprises an aerosol-forming substrate (20) and a susceptor assembled (4) within a wrapper (page 4 lines 23-25, page 18 lines 11-page 19 line 23, page 20 lines 9-11, fig. 5). Mironov ‘294 teaches air is drawn through the aerosol-generating article by the user from the distal end (80) to the mouth end (70) (col. 18 lines 25-31). The aerosol-forming substrate contains tobacco or non-tobacco volatile flavor compounds (page 10 lines 22-23).
The disclosed aerosol-generating article comprising an aerosol-forming substrate and a susceptor assembled within a wrapper corresponds to the claimed disposable item. The aerosol-forming substrate containing tobacco or non-tobacco volatile flavor compounds corresponds to the claimed flavor-release medium. Since the susceptor and aerosol-forming substrate are assembled within a wrapper, direct contact between the chamber and the susceptor and aerosol-forming substrate is prevented as claimed.
Mironov ‘294 further discloses that the susceptor is heated via fluctuations in an electromagnetic field generated by the inductor which in turn heats the aerosol-forming substrate resulting in the production of vapor (page 9 line 24-page 10 line 11) which corresponds to the claimed inductively heating of the induction element and thereby heating of the flavor-release medium.
Mironov ‘294 is silent regarding the aerosol-generating article (10) comprising a side not being formed of air permeable material. Mironov ‘294 is also silent regarding the distal end of the aerosol-generating article (10) being formed of air permeable material.
Tritz discloses a smoking article comprising a flavor release segment circumscribed by (i.e., wrapped in) a wrapper having an air permeability of less than about 5 Cortesa units which includes an air permeability of 0 Cortesa units (i.e., a nonpermeable wrapper)(abstract, page 1 lines 3-6, page 3 lines 7-13, page 4 lines 7-10). The flavor release segment comprises a plug formed from tobacco fibers dispersed in which are solid menthol particles (page 4 lines 24-38). The use of the disclosed wrapper to circumscribed the flavor release segment reduces the loss of menthol from the solid menthol particles (page 3 line 38-page 4).
Zuber discloses an aerosol-generating article which is for use in an electronic vapor inhaler [abstract, 0001]. The aerosol-generating article is a cylindrical rod having a side extending between a distal end and a mouth end wherein the aerosol-generating article comprises an aerosol-forming substrate [0016, 0037, Fig. 14]. The aerosol-generating article comprises a front plug that is positioned at the distal end of the aerosol-generating article [0018]. The front plug may be made from a filter material that allows air to be drawn through the front plug [0023]. Zuber teaches that the front plug prevents the egress of the aerosol-forming substrate from the distal end of the aerosol-generating article [0020].
Mironov ‘294 and Tritz are both directed towards smoking articles comprising a flavor material wrapped in a wrapper. It would have been obvious to one of ordinary skill in the art at the time the instant invention was effectively filed to have modified the aerosol-generating article of the invention of Mironov ‘294 by utilizing the wrapper disclosed by Tritz in order to allow for the inclusion of menthol particles into the aerosol-forming substrate without the concern of losing the menthol. The wrapper of the aerosol-generating article of the smoking article of modified Mironov ‘294 would have had an air permeability of less than about 5 Cortesa units which corresponds to the claimed side of the disposable item not being formed of air permeable material.
Mironov ‘294 and Zuber are both directed towards vapor inhalers comprising an aerosol-generating article containing an aerosol-forming substrate. In light of the teachings of Zuber, it would have been obvious to one of ordinary skill in the art at the time the instant invention was made to have incorporated a front plug formed from a filter material into the distal end of the aerosol-generating article of Mironov ‘294 in order to prevent the egress of the aerosol-forming substrate. The front plug of the resulting aerosol-generating article would have corresponded to the claimed distal end of the disposable item being formed from an air permeable material.
Regarding claims 16 and 17, Mironov ‘294 teaches that the inductor is in the form of one or more coils that surround the chamber (page 15 lines 13-14,page 19 line 24-page 20 line 11, figs. 4 and 5) which corresponds to the induction coil recited in claim 16 and the induction coil extending around the chamber recited in claim 17.
Regarding claim 19, Mironov ‘294 teaches that the aerosol-generating article comprises a mouthpiece (50) at one end (page 13 lines 9-10, page 14 lines 6-11, page 18 lines 11-20, fig. 3) which corresponds to the mouthpiece recited in claim 19.
Regarding claim 20, the portion of the inhaler of Mironov ‘294 which encompasses just the aerosol-forming substrate (20) of the aerosol-generating article may reasonably be interpreted as corresponding to the claimed chamber (page 18 line 11-page 19 line 23, fig. 3). The mouthpiece (50) of the inhaler of Mironov ‘294 reasonably corresponds to the claimed mouthpiece (page 18 line 11-page 19 line 23, fig. 3). Mironov ‘294 teaches that the aerosol-generating article (10) further comprises a support element (30) which is a hollow tube that extends from the aerosol-forming substrate (20)(and thus the claimed chamber) and the mouthpiece (50) (page 18 line 11-page 19 line 23, fig. 3). Given that the support element (30) is hollow and extends between the chamber which encompasses the aerosol-forming substrate (20) and the mouthpiece (50) the support element (30) is reasonably interpreted as corresponding to the claimed conduit.
Regarding claim 27, Zuber teaches that the front plug may be formed from paper [0024] or cellulose acetate fibers [0055] which respectively correspond to the claimed paper or cellulose fibers.
Regarding claim 28, Mironov ‘294 teaches that the chamber is disposed at the proximal end for the housing (figs. 4 and 5).
Regarding claim 29, Mironov ‘294 teaches that the disclosed inhaler comprises electronic circuitry which may switch off a fluctuating magnetic field used to heat the susceptor when the circuitry detects that the temperature of the susceptor has increased beyond a certain point (page 17 lines 12-25) which corresponds to the claimed control arrangement adapted to energize the induction heating arrangement to maintain a substantially predetermined temperature inside the disposable item.
Claims 18, 19, 21, 22, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Mironov ‘294 in view of Tritz and Zuber as applied to claim 14 above, and further in view of Mironov, WO 2015/177043 (“Mironov ‘043”)(previously cited).
Regarding claim 18, as is described above, Mironov ‘294 as modified with Tritz and Zuber teaches an electronic vapor inhaler which meets all of the limitations of claim 14. Modified Mironov ‘294 is silent regarding the housing comprising an air inlet positioned at the distal end of the housing.
Mironov ‘043 discloses an electronic vapor inhaler comprising an elongate housing extending between a first end and second end wherein a chamber (200) is positioned within the housing (abstract, page 1 line 1-page 2 line 2, page 9 lines 3-page 10 line 7, fig. 1). The chamber is configured to accept a removable cartridge (200) comprising an aerosol-generating substrate which is heated within the chamber via an induction heating arrangement (abstract, page 9 line 3-page 10 line 7, fig. 1). Mironov ‘043 teaches including an air inlet (121) at one end (i.e., the distal end) of the housing in order to allow for air to be drawn past a microphone (106) which serves as a puff sensor that controls the induction heating arrangement allowing the heating arrangement to be
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activated when a user puffs on the inhaler (page 9 line 28-page 10 line 7, Fig. 1).
Figure 1 of Mironov ‘043 illustrating the disclosed electronic
vapor inhaler comprising a housing having an air inlet at its distal end.
Modified Mironov ‘294 and Mironov ‘043 are both directed towards electronic vapor inhalers comprising an elongate housing extending between a first end and second end wherein a chamber is positioned within the housing and wherein the chamber is heated via an induction heating arrangement. In light of the teachings of Mironov ‘043 it would have been obvious to one of ordinary skill in the art at the time the instant invention was effectively filed to have included a microphone and air inlet at the distal end of the housing of the inhaler disclosed by Mironov ‘294 in order to provide a means for detecting when a user puffs on the inhaler. The air inlet positioned at the distal end of the inhaler of modified Mironov ‘294 would have read on the air inlet of claim 18.
Regarding claim 19, Mironov ‘294 teaches that the aerosol-generating article comprises a mouthpiece (50) at one end (page 13 lines 9-10, page 14 lines 6-11, page 18 lines 11-20, fig. 3) which corresponds to the mouthpiece recited in claim 19.
Regarding claims 21, 22, and 30, Mironov ‘294 teaches that when the disclosed inhaler is in use, air is drawn through the aerosol generating article by a user from the distal end to the mouth end (i.e., the air follows an airflow path passing into the distal end of the aerosol generating article and travels proximally through the aerosol generating article)(page 18 lines 25-31). Mironov ‘294 is silent regarding the housing comprising air inlets through which air enters.
Mironov ‘043 teaches incorporating air inlets (164) into the housing of an electronic vapor inhaler which allows for air to enter through the distal end of an aerosol generating article and travel proximally to a user’s mouth (page 12 lines 25-35, fig. 12).
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Figure 12 of Mironov ‘043 illustrating a vapor inhaler comprising air inlets
which allow air to travel through a vapor generating article.
Modified Mironov ‘294 and Mironov ‘043 are both directed towards electronic vapor inhalers comprising an elongated housing which houses a vapor generating article. In light of the teachings of Mironov ‘043 it would have been obvious to one of ordinary skill in the art at the time the instant invention was effectively filed to have incorporated air inlets into the housing of the vapor inhaler of modified Mironov ‘294 in order to provide a means for allowing air into the chamber which holds the aerosol generating article. The resulting vapor inhaler would have been the same as that claimed in claims 21 and 30. The aerosol generating article through which the air would flow corresponds to the flavor-release medium contained in the disposable item recited in claim 22.
Claims 23 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Mironov ‘294 in view of Tritz, Zuber, and Mironov ‘043 as applied to claims 14 and 21 above, and further in view of Brenneise, US 2011/0120482 (“Brenneise”)(previously cited).
Regarding claim 23, as is described above, Mironov ‘294 as modified with Tritz, Zuber, and Mironov ‘043 teaches an electronic vapor inhaler which meets all of the limitations of claim 14.
Modified Mironov ‘294 is silent regarding the inhaler comprising a temperature sensor position along the airflow path.
Brenneise discloses an electronic vapor inhaler comprising a temperature control module (126) which is electrically connected to a temperature sensor (350) [abstract, 0036, 0041, Fig. 3]. The temperature sensor is position so as to be between a heating element (310) and a chamber (210) comprising a material which serves as the source of the vapor [0032, 0037, fig. 3]. Brenneise teaches that the temperature control module and connected temperature sensor regulate the power transmitted to a heating element so as to not allow the heating element to get so hot as to cause the vapor source material to spontaneously combust [0041].
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Figure 3 of Brenneise illustrating the disclosed vapor inhaler
comprising a temperature sensor (350).
Modified Mironov ‘294 and Brenneise are both directed towards electronic vapor inhalers which function by electrically heating a vapor source. It would have been obvious to one of ordinary skill in the art at the time the instant invention was effectively filed to have incorporated a temperature control module and a temperature sensor in the fashion disclosed by Brenneise into the inhaler of modified Mironov ‘294 with the expectation of providing a means of preventing spontaneous combustion of the aerosol-generating article. The temperature sensor in the resulting electronic vapor inhalers would have been positioned along the inhaler’s airpath as recited in claim 23. The temperature control module taught by Brenneise corresponds to the control arrangement recited in claim 25.
Regarding claim 24, Brenneise discloses that the temperature sensor is a thermocouple [0042].
Claims 23, 25, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Mironov ‘294 in view of Tritz, Zuber, and Mironov ‘043 as applied to claims 14 and 21 above, in further view of Liu, WO 2014/205748 (“Liu”)(previously cited).
Regarding claim 23, as is described above, Mironov ‘294 as modified with Tritz, Zuber, and Mironov ‘043 teaches an electronic vapor inhaler which meets all of the limitations of claims 14 and 21.
Modified Mironov ‘294 is silent regarding the inhaler comprising a temperature sensor position along the airflow path.
Liu discloses an electronic vapor inhaler comprising an airflow path which extends from an air inlet port (22) disposed at a distal end and an air outlet port (11) disposed at a proximal end wherein a vaporizer assembly (20) is disposed between the distal and proximal ends [abstract, 0010-0020, 0035-0041, fig. 2]. Lui teaches disposing a temperature detecting device (i.e., a temperature sensor) in the airflow path near the proximal end [0010-0020, 0035-0041, fig. 2]. The temperature detecting device is electrically connected to a control module and an electric heating assembly [abstract, 0010-0020, 0035-0041, fig. 2]. The heating assembly is relied upon to heat an oil storage cotton (i.e., a vapor-generating article) [0030]. The temperature detecting device, control module, and heating assembly enables the inhaler to provide the user with a vapor which has a relatively constant temperature [0021].
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Figure 2 of Liu illustrating the disclosed electronic vapor
inhaler comprising a temperature sensor.
Modified Mironov ‘294 and Liu are both directed towards electronic vapor inhalers which function by electrically heating a vapor generating article. In light of the teachings of Liu, it would have been obvious to one of ordinary skill in the art at the time the instant invention was effectively filed to have incorporating a control unit and a temperature detecting device into the inhaler of modified Mironov ‘294 in order to enable the inhaler to provide a user with a vapor which has a relatively constant temperature. The temperature detecting device which would have been present in the resulting inhaler would have been positioned in an airflow path and therefore would have corresponded to the claimed temperature sensor.
Regarding claims 25 and 26, Liu teaches that a user can preset the control module with preferred vapor temperatures [0027] which corresponds to the comprising a control arrangement for controlling operation of the induction heating arrangement based on temperature measured by the temperature sensor recited in claim 25. Since the user can select the preset temperature the control module must comprise a temperature selector allowing a user to select a desired vapor inhalation temperature as recited in claim 26.
Allowable Subject Matter
Claim 15 is 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 closest prior art of record which is described above does not reasonably teach or suggest an electronic vapor inhaler which meets all the limitation of instantly pending claim 14 wherein chamber is positioned at the distal end of the housing as recited in claim 15.
Response to Arguments
On pages 2 and 3 of the remarks filed 24 September 2025 Applicant asserts that the disclosure of Zuber consistently ties the presence of the front plug to its purpose of retaining the aerosol-forming substrate within the smoking article when the penetrating heating element is withdrawn from the smoking article as well as the additional benefit of wiping the heating element upon withdrawal of the heating element from the article. Applicant goes on to assert that these functions are not relevant to Mironov ‘294 because Mironov ‘294 heats the aerosol-generating substrate via an inductor rather than a resistive heating element. Applicant’s argument is not found persuasive for the following reason. At paragraph 0020, when describing the advantages of the front plug, Zuber teaches the front plug may prevent egress of the aerosol-forming substrate from the distal end of the rod during handling and shipping. As such, it is evident that the advantage of the front plug disclosed by Zuber extends beyond smoking articles having a penetrating resistive heating element. Given that smoking article of modified Mironov ‘294 would have comprised an aerosol-generating substrate which could be dislodged and would be subject to egress during handling and shipping, one of ordinary skill in the art would have reasonably considered it advantageous to include the front plug taught by Zuber into the smoking article.
Duty to Disclose
Applicant is reminded of the continuing obligation under 35 U.S.C. 1.178(b), to timely apprise the Office of any prior or concurrent proceedings in which U.S. Patent No. 10,448,673 is or was involved. These proceedings would include any trial before the Patent Trial and Appeal Board, interferences, reissues, reexaminations, supplemental examinations, and litigation.
Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is material to patentability of the claims under consideration in this reissue in this reissue application. These obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1422.01, and 1442.04.
Conclusion
Claims 14 and 16-30 are rejected. Claim 15 is objected to.
THIS ACTION IS MADE FINAL. 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 LEE E SANDERSON whose telephone number is (571) 270-1079. The examiner can normally be reached M-F: 9:30AM to 7:00PM.
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/LEE E SANDERSON/ Patent Reexamination Specialist, Art Unit 3991
Conferees:
/LEONARDO ANDUJAR/Primary Examiner, Art Unit 3991
/Patricia L Engle/SPRS, Art Unit 3991