DETAILED ACTION
Response to Arguments
Applicant's arguments filed 4/22/2026 have been fully considered but they are not persuasive.
Applicant argues “A person of ordinary skill in the art would have no reason to look to the disclosure of Desnerck, nor be motivated to look to the disclosure of Desnerck, when considering modifications to the extractor 101 of Plojoux because Desnerck has no extractor-like feature.” The Examiner disagrees. A person of ordinary skill in the art seeking to modify the aerosol provision device of Plojoux comprising a heating chamber and a heating element protruding into the heating chamber would have looked to other aerosol provision devices comprising a heating chamber and a heating element protruding into the heating chamber, such as that of Desnerck. The mere fact that the configuration of Desnerck is not identical to that of Plojoux does not indicate that one of ordinary skill in the art would have considered Desnerck as a whole to be inapplicable to the device of Plojoux.
Applicant argues “The features of claim 1 all contribute to eliminating the issue of a build-up of residue within the device, as the residue is removed from the device along with the receptacle. The assertion in the Office Action that it would have been obvious for a person of ordinary skill in the art to have considered combining these documents is not the kind of rationale permitted under 35 USC 103 as is plainly relies upon impermissible hindsight analysis.” The Examiner disagrees. The assertion in the Office action does not rely upon hindsight analysis. The assertion relies on explicit teaching and motivation in Desnerck for making the modification.
Applicant argues “However, the functionality of the numerated aperture 109, through which the heating element extends and which is described as being used to "manage the air flow", would still be compromised thereby compromising the device and potentially rendering it inoperable. A person of ordinary skill in the art would still, following the Examiner's logic, need to modify the apparatus of Plojoux in direct opposition to the teaching of the document.” The Examiner disagrees. The embodiment shown in the Figures of Plojoux shows one aperture. In this embodiment, as described in [0094] cited by Applicant, the one aperture would be critical for managing air flow. However, in other embodiments wherein other holes are provided for airflow, as described in [0103], one of ordinary skill in the art would recognize that the aperture through which the heating element extends is not critical for managing air flow and that the combination with Desnerck would not compromise the functionality of the device of Plojoux. A person of ordinary skill is also a person of ordinary creativity, not an automaton." KSR Int'l Co. V. Teleflex Inc., 550 U.S. 398, 421 (2007). In making an obviousness determination one "can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR, 550 U.S. at 418.
Applicant argues “the additional holes mentioned in paragraph [0103] further teach away from the features of independent claim 1. Claim 1 recites "that residue is contained in the receptacle after it has been removed from the device housing". The holes in paragraph [0103] would provide the opportunity for residue to escape.” The Examiner disagrees. There is nothing in the claims that requires 100% of the residue to remain in the receptacle, nor is there any indication in Plojoux that the small airflow holes would be so large that all of the residue would escape the receptacle.
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 4-5 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.
It is unclear if claim 4 is referring the to the same aperture of claim 1. For examination purposes, claim 4 will be interpreted as “the base comprises the aperture through which the heating element extends, wherein the contact feature is defined by at least part of a side of the aperture.”
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 4, 9-10, 13-14, and 17-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mahler (US 2018/0049472).
Regarding claims 1 and 4, Mahler [Fig. 3-8] teaches an aerosol provision device 100 comprising: a device housing (outer housing of figures) defining a device chamber [0073]; a heating element 110 protruding into the device chamber from an end 120 of the device chamber [0073]; a receptacle 130 defining a heating chamber 135 arranged to receive at least a portion of a consumable comprising aerosolizable material [0073], wherein the receptacle is at least partially removably disposed within the device chamber [Fig. 7-8], wherein the receptacle comprises a base 137/139 and the heating element 110 is arranged to protrude through the base into the heating chamber 135, wherein the base locates at the end 129 of the device chamber [0073], wherein the receptacle further comprises a wall 131 projecting from the base to define the heating chamber that encircles the heating element 110 protruding into the heating chamber 135 [0071], and wherein the base is provided with an aperture 138 through which the heating element extends; wherein the aperture comprises a peripheral edge. Mahler teaches aperture has dimensions identical to cross-sectional dimensions of the heater so that the heater scrapes the aperture when passing into and out of the cavity, thereby cleaning the blade of debris and residue, the debris and residue remaining within the extractor [0009, 0074]. In other words, the receptacle comprises an aperture contact feature arranged to make sliding contact with the heating element during removal of the receptacle from the device chamber and the peripheral edge is sized and shaped to slidingly contact the heating element such that residue is contained in the receptacle after it has been removed from the device housing, the contact feature is defined by at least part of a side of the aperture.
Regarding claims 9-10, the receptacle of Mahler is removably secured in the device chamber and retractable from the device chamber [0022; Fig. 7-8].
Regarding claim 13-14, Mahler teaches the heating element is blade-shaped [0074]. Thus, the sides of the aperture are sized and shaped to make sliding contact with the substantially blade-shaped heating element.
Regarding claim 17, Mahler teaches the aerosol provision device is a non-combustible aerosol provision device [0021].
Regarding claim 18, Mahler teaches the aerosol provision device is configured to heat non-liquid aerosolisable material [0047-0048].
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 4, 8-10, 13-15, and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Plojoux (US 2015/0013696) in view of Desnerck (WO 2019/238812)
Regarding claims 1 and 4, Plojoux teaches an aerosol provision device comprising: a device housing 113 [Fig. 1; 0090] defining a device chamber [region surrounding heating element 115 in Fig. 3]; a heating element 115 protruding into the device chamber from an end 117 of the device chamber [0090; Fig. 3]; a receptacle 105 defining a heating chamber arranged to receive at least a portion of a consumable 201 comprising aerosolizable material 2-3 [0089, 0091; Fig. 1 and 2A]; and wherein the receptacle is at least partially removably disposed within the device chamber [0095]. The receptacle comprises a face (base) and the heating element 115 is arranged to protrude through the base into the heating chamber and the base comprises an aperture through which the heating element extends [Fig. 1; 0033, 0036, 0037]. Plojoux teaches the base locates at the end of the device chamber [Fig. 1]. Plojoux teaches the receptacle 105 further comprises a wall [side wall along location of 105 arrow in Fig 1] projecting from the base to define the heating chamber that encircles the heating element 115 protruding into the heating chamber.
Plojoux does not teach a contact feature arranged to make sliding contact with the heating element during removal of the receptacle from the device chamber. Desnerck teaches an aerosol-generating device wherein an opening through which a heating element extends is configured as a narrow slit that enables movement of the heating element and scrapes off residues of aerosol-generating substrate from the heating element during movement of the heating element [page 3, lines 21-33]. It would have been obvious to one of ordinary skill in the art to configure the aperture through which the heating element extends in the device of Plojoux to be a narrow slit that enables movement of the heating element and may scrape off residues of aerosol-generating substrate from the heating element during movement of the heating element, i.e. a contact feature arranged to make sliding contact with the heating element during removal of the receptacle from the device chamber, the base forms the contact feature and the contact feature is defined by at least part of a side of the aperture, wherein the aperture comprises a peripheral edge sized and shaped to slidingly contact the heating element. One of ordinary skill in the would have found it obvious for the benefit of cleaning the heating element as suggested by Desnerck. Thus, residue would be contained in the receptable after it has been removed from the device housing.
Regarding claim 8, Plojoux teaches the receptacle comprises a flange 107 (lip) configured to protrude from the device chamber [Fig. 1].
Regarding claim 9, Plojoux teaches the receptacle is removably secured in the device chamber [0125].
Regarding claim 10, Desnerck teaches the heating element is retractable from the device chamber as part of the mechanism for scraping off residues of aerosol-generating substrate from the heating element [page 3, lines 21-33], which would have been obvious to one of ordinary skill in the art to apply to the device of Plojoux for the same reasons with respect to claim 1 above.
Regarding claims 13-15, Plojoux teaches the heating element is pin-shaped or blade-shaped [0123]. Thus, in modified Plojoux, the sides of the aperture are sized and shaped to make sliding contact with the substantially blade-shaped heating element.
Regarding claim 17, Plojoux teaches the aerosol provision device is a non-combustible aerosol provision device [0008, 0031].
Regarding claim 18, Plojoux teaches the aerosol provision device is configured to heat non-liquid aerosolisable material [0050].
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Mahler as applied to claim 4 above, and further in view of Murray (US 2022/0022537).
Mahler does not teach the base comprises a resilient member. Murray teaches a smoking substitute apparatus wherein a resilient member performs a scraping function [1243]. As Mahler as teaches the base performs a scraping function, it would have been obvious to one of ordinary skill in the art to configure the base of Mahler to comprise a resilient member as suggested by Murray to achieve the same, predictable result of scraping off residues from the heating element.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Plojoux and Desnerck as applied to claim 4 above, and further in view of Murray.
Modified Plojoux does not teach the base comprises a resilient member. Murray teaches a smoking substitute apparatus wherein a resilient member performs a scraping function [1243]. As modified Plojoux as applied above teaches the base performs a scraping function, it would have been obvious to one of ordinary skill in the art to configure the base of modified Plojoux to comprise a resilient member as suggested by Murray to achieve the same, predictable result of scraping off residues from the heating element.
Claims 5 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Mahler as applied to claim 1 above, and further in view of Plojoux.
Regarding claim 5, Mahler does not teach the receptacle comprises a lip configured to protrude from the device chamber. Plojoux teaches the receptacle comprises a flange 107 (lip) configured to protrude from the device chamber [Fig. 1] that the user may grip to pull the receptacle out of the sleeve [0105]. It would have been obvious to one of ordinary skill in the art to modify the device of Mahler such that the receptacle comprises a lip configured to protrude from the device chamber to facilitate removal of the receptacle.
Regarding claim 15, Mahler teaches the heating element is blade-shaped [0074] but does not teach pin-shaped. Plojoux teaches the heating element is pin-shaped or blade-shaped [0123]. As it is prima facie obvious to substitute art recognized equivalents known for the same purpose, it would have been obvious to one of ordinary skill in the art to use a pin-shaped heating element in the device of Mahler to achieve predictable results.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Mahler as applied to claim 1 above, and further in view of Taurino (US 2021/0251286).
Mahler teaches the heating element comprises an inductive heating element [0031] but does not disclose further details. Taurino teaches an aerosol-generating system wherein an inductive heating element comprises a susceptor which is heatable by penetration with a varying magnetic field and an inductor coil extending around the susceptor, wherein the inductor coil is configured to generate the varying magnetic field [0075-0076]. As this is a conventional arrangement for an inductive heating element known in the art, it would have been obvious to one of ordinary skill in the art to use for the inductive heating element of Mahler to achieve predictable results, i.e. inductive heating of the aerosolizable material.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Plojoux and Desnerck as applied to claim 1 above, and further in view of Taurino.
Plojoux teaches the heating element comprises an inductive heating element [0025] but does not disclose further details. Taurino teaches an aerosol-generating system wherein an inductive heating element comprises a susceptor which is heatable by penetration with a varying magnetic field and an inductor coil extending around the susceptor, wherein the inductor coil is configured to generate the varying magnetic field [0075-0076]. As this is a conventional arrangement for an inductive heating element known in the art, it would have been obvious to one of ordinary skill in the art to use for the inductive heating element of modified Plojoux to achieve predictable results, i.e. inductive heating of the aerosolizable material.
Conclusion
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/ERIC YAARY/ Examiner, Art Unit 1755
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