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
Applicant’s amendment to claims 12, 14-16, and 18, cancellation of claims 13 and 17, amendment to the drawings and specification, and supporting remarks filed 01/26/2026 (“Amendment”) have been entered. Accordingly, the objections to the drawing and specification, the claim rejections under 35 USC 112 regarding the “flavoring material” of claim 12, and the rejections under 35 USC 102 are withdrawn. However, the rejections under 35 USC 112 of claims 14, 16, and dependents thereof, and the rejections under 35 USC 103 are maintained (specifically, the amendment to claim 12 incorporates the subject matter of claims 13 and 17 which formed a single chain of dependency, and thus the previous rejection of claim 17 is now maintained for claim 12. However, the amendment to claim 12 necessitated editing of the rejection applied to dependent claim 16. Additionally, the amendment to claim 15 necessitated minor editing of the rejection). Additionally, a new objection to claim 12 is set forth below. Claims 12, 14-16, and 18-20 remain pending and are examined herein.
Response to Arguments
Applicant's arguments regarding the rejections under 35 USC 103 and 112 (Amendment p. 9-13) have been fully considered but they are not persuasive.
Regarding the rejections under 35 USC 112, the Applicant’s remarks indicate that claims 14 and 16 were amended to overcome the rejection (Amendment p. 9), but the claims have not actually been amended as indicated. Claim 12 was indeed amended to recite “flavour material,” resolving one rejection under 35 USC 112; however, claim 14 still recites “…in order to regulate an amount of the flavour material released by the atomizer” (emphasis added) and claim 16 still recites “wherein the flavour component is disposed near an end of the outlet portion” (emphasis added); thus, the rejections for claims 14 and 16 are maintained.
Regarding the rejections under 35 USC 103, Applicant argues that Nakano and Bialek fail to disclose amended claim 12, particularly the claimed “cavity” and “air collection hole”, because (1) Bialek’s mixing chamber 17 is an external component whereas the claimed cavity 32 is a component in the inner of the flavour component 3 (Amendment p. 11), (2) adding Bialek’s mixing chamber 17 would make it impossible to replace Nakano’s flavor unit 130 (Amendment p. 11-12), (3) Nakano’s second flow path 129 is outside the case 131 and flavor unit 130 and there is no TSM to extend the second flow path 129 through the case 131 as alleged in the Non-Final Office Action (Amendment p. 12-13).
Regarding (1), the Examiner respectfully disagrees because the argument refers to the specification and drawings to point out alleged distinctions which are not recited in the claims. Claim 12 merely requires that “a cavity is defined between the flavour material and the outlet portion”. Nakano modified to include Bialek’s chamber 17 would have such a cavity between Nakano’s flavor source and suction port 141.
Regarding (2), the Examiner respectfully disagrees because Applicant has presented no evidence demonstrating that it would be impossible to remove Nakano’s flavor unit 130. In fact, Applicant’s own statements regarding the “cap” at p. 11 demonstrate that it would be possible to replace the flavor unit 130. Regardless, one of ordinary skill in the art would be capable of incorporating Bialek’s chamber 17 into Nakano while maintaining the removability of the flavor unit 130 (for instance, by allowing the chamber 17 to be removed along with the flavor unit 130, or by making the flavor unit 130 separable from the chamber 17 as discussed by Applicant at p. 11). Furthermore, Applicant’s arguments regarding ease of replacement of the flavour component 3 in the present application are not relevant to the motivation for combining Nakano and Bialek.
Regarding (3), Nakano indeed does not show a side wall in the cylindrical body 131 allowing entry of the second flow path 129, because Nakano does not contemplate mixing the first and second flow paths 128, 129. The motivation for forming such a hole communicating the second flow path 129 with the interior of the body 131 comes from Bialek, which discloses the mixing chamber 17. One of ordinary skill in the art would recognize that forming such a hole in the body 131 and extending the second flow path 129 therethrough is a simple and feasible way to combine the flow paths 128, 129 immediately before the mixing chamber 17.
Claim Objections
Claim 12 is objected to because the last clause recites “and the mixed aerosol are capable of entering the outlet portion” which appears to be a typo of “and the mixed aerosols are capable of entering the outlet portion”.
Appropriate correction is required.
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 14, 16, and 20 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.
Claim 14 recites “…in order to regulate an amount of the flavour material released by the atomizer” (emphasis added), but independent claim 12 recites that the atomizer atomizes the matrix, whereas the first heating component heats the flavour component, so it is unclear how the atomizer of claim 14 releases any flavour material. For purposes of this office action, claim 14 is interpreted as reciting “…in order to regulate an amount of the flavour material released by the first heating component”.
Claim 16 recites “wherein the flavour component is disposed near an end of the outlet portion and is spaced apart from the outlet portion”, where “near” is a relative term which renders the claim indefinite. The term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For purposes of this office action, claim 16 is interpreted as reciting “wherein the flavour component is disposed adjacent to an end of the outlet portion and is spaced apart from the outlet portion” as shown in Fig. 6 (see flavour component 3 and outlet portion 4).
Claim 20 is rejected due to its dependency on claim 14.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 12, 14-16, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Nakano (TW 202008900 A, US 2021/0169148 A1, previously cited) in view of Bialek (US 2022/0273031 A1, previously cited).
Regarding claim 12, Nakano is directed to a suction component generator (“[a]n electronic atomization device” as claimed) with first and second suction component sources (Title, Abstract).
The suction component generator 100 includes an atomization unit 120 (“atomizer”) with an electrical load 122R for atomizing an aerosol source (“matrix”) [0061-62]. The atomization unit 120 has internal space defining a flow path 127 (which reads on an “atomization chamber” and an “outlet port” as claimed; see Fig. 2 annotated below) where inflowing air contacts the electrical load 122R and then generated aerosol flows out toward a flavor unit 130 ([0067], Fig. 2);
the flavor unit 130 (“flavour component”) includes a cylindrical body 131 accommodating a flavor source (“flavoring material”) ([0070], Fig. 2);
the suction component generator 100 includes a suction port 141 (“outlet portion”) through which a user inhales ([0060], Fig. 1);
the suction component generator 100 includes a first flow path 128 (“first aerosol channel”) running through the flavor source and a second flow path 129 (“second aerosol channel”) going around the flavor source, with aerosol flowing from the flow path 127 through both paths 128, 129 ([0078], Fig. 2). The flavor source is located within the flavor unit 130, through which the first flow path 128 runs ([0070, 0078], Fig. 2);
the suction component generator 100 further includes an electrical load 124R (“first heating component”) for heating the flavor unit 130 ([0061, 0073], Fig. 2);
the generator 100 includes a cylindrical body 131 (“case”) accommodating the flavor source [0070]. The suction port 141 is located at an end of the body 131 beyond a filter 132 ([0071], Figs. 1-2) (“the outlet portion is formed at an end of the case”);
the cylindrical body 131 and flavor source are arranged in the first flow path 128 (“a portion of the case having the flavour material is received in the first aerosol channel”).
Nakano fails to disclose a “cavity” between the flavor source and the suction port 141 as claimed. Nakano fails to disclose “a side wall of the case defines an air collection hole corresponding to the cavity”. Aerosol exiting the path 127 may flow to either the first or second path 128, 129, but Nakano fails to disclose that “the aerosol in the second aerosol channel is capable of passing through the air collection hole and mixing with the aerosol in the first aerosol channel in the cavity, and the mixed aerosols are capable of entering the outlet portion”.
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Bialek is directed to an aerosol-generating device and a method of generating a mixed aerosol (Title). This advantageously allows for use of two different vaporization techniques in combination to generate a large volume of mixed aerosol [0011]. One of ordinary skill in the art would recognize that such an advantage is applicable to Nakano which separately aerosolizes its aerosol source and flavor source. Further, it is well-known in the art to mix aerosols, air, and other fluidic components prior to or during user inhalation. Bialek’s device includes a mixing chamber 17 (“cavity”) which may be a cavity defined by the housing ([0074], Fig. 2). The mixing chamber 17 receives and mixes two aerosols and delivers them to a mouthpiece 18 for user inhalation [0074-75].
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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 Nakano by incorporating Bialek’s mixing chamber 17 into Nakano’s generator 100 upstream of the suction port 141 (such that Nakano’s paths 128, 129 each direct aerosol into the mixing chamber 17 to be mixed), because both Nakano and Bialek are directed to aerosol-generating devices with multiple aerosol sources, Bialek teaches that the mixing advantageously allows for larger aerosol volume production and this and other advantages of mixing (e.g., more consistent aerosol delivery) are well-known in the art, 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). It would similarly be obvious to extend Nakano’s second flow path 129 through the case 131 into the mixing chamber 17, in order to facilitate the mixing, which reads on “a side wall of the case defines an air collection hole corresponding to the cavity” and “the aerosol in the second aerosol channel is capable of passing through the air collection hole and mixing with the aerosol in the first aerosol channel in the cavity, and the mixed aerosols are capable of entering the outlet portion”.
Regarding claim 14, the electrical load 124R may be a temperature controller 124 which can adjust the temperature of the flavor source [0075]. The suction component generator 100 may also include a control unit 50 (“controller”) with a suction sensor 20 for operating the electrical load 124R upon detection of user suction [0084-85]. The control unit 50 measures the temperature of the flavor source and adjusts the power supply to achieve a target temperature and/or target flavor amount [0099-0101, 0152-0154]. The control unit 50 can measure the number of suctions to determine when a suction cycle is completed [0107]. Nakano also discloses that the amount of flavor generated depends on (1) the amount of aerosol passing through and (2) the temperature of the flavor source [0098, 0154]. Nakano also discloses a flow rate adjusting unit 730 which controls the amount of flowing aerosol in order to balance a ratio of aerosol and flavor.
Nakano fails to explicitly disclose the control unit 50 being “configured to control a heating temperature of the first heating component based on the detected number of inhalation times in order to regulate an amount of the flavour material released by the atomizer so that a concentration of the flavour material in the aerosol at the outlet portion is uniform” as claimed. However, it would be obvious to one of ordinary skill in the art to configure the control unit 50 as such. As set forth above, Nakano discloses the control unit 50 which adjusts power supply to achieve a target flavor temperature and/or amount, the flavor production which partially depends on heating temperature, the suction sensor 20 which detects suction and counts a number of suctions, and the adjusting unit 730 which balances the ratio of aerosol and flavor. From these disclosures, it would be obvious to one of ordinary skill in the art to configure the control unit 50 to adjust the flavor temperature to balance this same ratio, because one of ordinary skill in the art would recognize that controlling the flavor temperature is an additional way to achieve this balance. For instance, one of ordinary skill in the art would recognize that the control unit 50 and adjusting unit 730 could be used together in tandem to balance the ratio more precisely than merely using the adjusting unit 730 alone.
Regarding claim 15, as shown in Fig. 1, the suction component generator 100 has an exterior housing (“shell”) with internal space defining a receiving cavity for housing the atomization unit 120 and the flavor unit 130. As shown in Fig. 2, the flavor unit 130 is disposed in the first flow path 128. The suction port 141 may be provided on a mouthpiece which may be integrally formed with the suction component generator 100 [0077].
Regarding claim 16, Nakano’s flavor unit 130 is adjacent to the suction port 141 ([0071], Figs. 1-2) (which reads on “wherein the flavour component is disposed adjacent to an end of the outlet portion”). In modified Nakano wherein Bialek’s mixing chamber 17 is arranged upstream of the suction port 141, the flavor unit 130 and suction port 141 would be “spaced apart” as claimed. The mixing chamber 17 would further read on the claimed “aerosol mixing zone” in addition to the “cavity” of claim 12, because the “cavity” and “aerosol mixing zone” are both located between the claimed flavour component and outlet portion (see also Applicant’s Substitute Specification Clean Copy and Fig. 7 showing the device according to the second embodiment with mixing zone 83 [0013, 0080-81], and Fig. 9 showing the device according to a third embodiment with cavity 32 [0015, 0096], wherein the mixing zone 83 and cavity 32 are shown and described to be overlapping spaces).
Regarding claim 18, as shown in Fig. 1, the suction component generator 100 has an exterior housing (“shell”) with internal space defining a mounting cavity (“flavour component mounting cavity”) for housing the flavor unit 130, cylindrical body 131, and electrical load 124R. Modified Nakano as discussed above in claim 17 has the second flow path 129 extending through the case 131 into the mixing chamber 17. The portion of the flow path 129 immediately outside the case 131 reads on the claimed “connecting cavity” and modified Nakano further reads on “the second aerosol channel is communicated to the cavity through the connecting cavity and the air collection hole” because the second flow path 129 is communicated to the mixing chamber 17 by extending through the case 131.
Regarding claim 20, the flavor unit 130 is arranged side-by-side with the other components of the atomization unit 120. However, the second flow path 129 surrounds the flavor unit 130 and is therefore not arranged “side-by-side” with the flavor unit 130 and atomization unit 120. As shown in Fig. 2, the second flow path 129 is arranged on top and bottom sides of the flavor unit 130 which are away from the atomization unit 120 (which reads on “the second aerosol channel is arranged on a side of the flavour component away from the atomizer”; compare with Applicant’s Figs. 6-7 showing second aerosol channel 82 with portions contacting top, bottom, and right “side” surfaces of the flavour component 3 “away from” the atomizer 2). As shown in annotated Fig. 2, the portion of the flow path 127 reading on the claimed “outlet port” is located between the atomization unit 120 and flavor unit 130 away from the suction port 141 (which reads on “the outlet port is defined at an end of a side wall of the atomizer away from the outlet portion”).
The sole difference between Nakano and the device of claim 20 is that Nakano’s second flow path 129 is not arranged “side-by-side” with the atomization unit 120 and flavor unit 130 as claimed. However, arranging such components side-by-side would be a mere rearrangement of parts which does not patentably distinguish the prior art See MPEP 2144.04(VI)(C); see also In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Nakano (TW 202008900 A, US 2021/0169148 A1) in view of Bialek (US 2022/0273031 A1) as applied to claim 18, further in view of Alston (US 2020/0146352 A1, previously cited).
Nakano and Bialek fail to disclose “wherein a sealing member is disposed between the outer surface of the case corresponding to the air collection hole and the flavour component mounting cavity to prevent the aerosol that flows from the second aerosol channel into the cavity from being leaked”.
Alston is directed to a vaporizer device with more than one heating element (Title). Alston discloses a seal 586 (“sealing member”) which creates a sealed airflow pathway extending along side walls of a vaporizable material insert ([0018, 0108], Fig. 5A). The sealed airflow pathway advantageously directs heated airflow through the vaporizable material [0018, 0108]. One of ordinary skill in the art would further recognize that the seal 586 prevents aerosol from escaping to any other device components, because Alston discloses as much when discussing another seal 127 [0083-84].
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 Nakano by incorporating Alston’s seal 586 in the second flow path 129 near the point where the flow path 129 extends through the case 131 and into the mixing chamber 17, because both Nakano and Alston are directed to aerosolization devices, this would create a sealed flow path 129 and ensure aerosol is directed through the case 131 and into the mixing chamber 17 without escaping, 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).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H. Wilson can be reached at (571) 270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL PATRICK MULLEN/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747