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 Arguments
Applicant's arguments filed 12/4/2025 have been fully considered but they are not persuasive.
Applicant argues that Counts ‘978 discloses a device having a cylindrical heating fixture, 39, for heating a cigarette 23 (See figure 2). The Examiner considers the fixture 39 to be “removable” due to it being “fixed to the device by pins that fit within corresponding sockets” (C10, l49-68). However, the fixture 39 is secured in position by a snug fit with the housing. It is further secured via friction fit with a spacer and ring, 49 and 99 and that two of the pins are welded for connection. Accordingly, Counts ‘978 cannot be understood to comprise a teaching of a removable receptacle.
Examiner respectfully disagrees. The spacer ring and pins of the fixture, 39, are a part of the fixture. Thus, the welding that would be performed would not be between the fixture and housing, but between parts of the fixture.
Counts ‘978 further supports Examiner’s position by stating that the fixture, 39, is disposable separately from the lighter (Column 13, lines 5-20). Thus, it is removably connected to the housing as indicated by Examiner. It is further noted by Counts ‘978 that the heater is disposable and mated to a power source in the art (Column 1, lines 16-30)
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.
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Claim(s) 1-8, 10, 11, 16, 19-21, 23, 28, 33 and 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over COUNTS et al. (US 5,954,979) in view of COUNTS et al. (US 5,666,978).
With respect to claims 1 and 34, COUNTS et al. discloses an electrical smoking system (Abstract) comprising a device housing, 33, Column 4, lines 19-40) having a device chamber (e.g., inside of 33, as seen in figure 2); a receptacle, 39 , arranged within the device chamber (Figures 1 and 2; Column 4, lines 19-40). The receptacle comprising a base, 380, and a wall, 310 and 400 extending from the base that define a chamber (Column 14, lines 1-35) to removably receive at least a portion of an aerosol generating material (Figures 2-3C and 10; Column 4, lines 1-15). The system further comprises a heating element, 37, for heating the article received in the chamber (Figure 6; Column 14, lines 1-35). The receptacle is formed of two walls. The first being wall, 310, and the second being wall 400, (Figures 6 and 9; Column 14, lines 1-35), between which is formed an enclosed airflow channel, 410 (Figure 6; Column 14, lines 45-65). This enclosed airflow channels is also within device chamber of device housing 33 (Figure 2). The provided airflow is then provided to the heating chamber (Column 15, lines 60-68; Column 16, lines 1-55).
COUNTS et al. does not explicitly disclose that the receptacle is removable. COUNTS et al. ‘978 discloses a smoking system (Abstract) wherein the receptacle, 39, is fixed to the device by pins that fit within corresponding sockets (Column 10, lines 49-68; Column 11, lines 1-10). Socket fitments are used to provide an easily removable joint between two sections (Column 4, lines 57-68; Column 5, lines 1-20). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide corresponding sockets on the device of COUNTS et al., as taught by COUNTS et al. ‘978 so that the receptacle can be easily removed from the base of the device, when the housing is also removed therefrom, so that the receptacle can be cleaned if needed, or replaced if the heater elements are no longer working.
With respect to claim 2, as seen in figure 6 of COUNTS et al., the heater protrudes into the heating chamber (e.g., area inside 400) from the base (e.g., extends upwardly from base towards end 27).
With respect to claim 3, COUNTS et al. discloses that the receptacle defines an axis and the closed channel extends in the axial direction (Column 3, lines 5-20; Column 6, lines 1-15; Figures 6 and 9).
With respect to claim 4, COUNTS et al. discloses that at a proximal end of the receptacle is an opening to the heating chamber (through 27; Figures 6 and 9) and at the base is at the distal end of the receptacle. The closed channel extends between the proximal and distal ends (Figures 6 and 9).
With respect to claim 5, COUNTS et al. discloses that the closed channel comprises an air inlet, 352, at the proximal end and extending in the radial direction (Figures 7A and 9; Column 12, lines 5-50).
With respect to claim 6, as seen in figures 7A and 9 of COUNTS et al., the inlets extend around the opening.
With respect to claims 7 and 8, COUNTS et al. discloses that the enclosed air channel comprises air outlets, 394, to the heating chamber (Figures 7-10; Column 14, lines 32-45), proximate the base.
With respect to claim 10, COUNTS et al. discloses that the wall arrangement comprises an outer wall, 310, and an inner wall 400, (Figures 6 and 9; Column 14, lines 1-35), between which is formed an enclosed airflow channel, 410 (Figure 6; Column 14, lines 45-65).
With respect to claim 11, the outer wall extends from the base and forms a cup therewith (COUNTS et al.; Figures 6 and 9). Specifically, these structures form a cup because the outer wall and base form an enclosed space that is accessible from the opening in 27.
With respect to claim 16, COUNTS et al. does not explicitly disclose whether the base, inner wall and outer wall are removably connected. The courts have generally held that making parts separable is prima facie obvious. See, In re Dulberg, 289 F.2d 522, 523, 129 USPQ 348, 349 (CCPA 1961). MPEP 2144.04, V, C. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide the inner wall, outer wall and base as removable parts so that if further cleaning is necessary, it can be done by completely disassembling the receptacle.
With respect to claim 19, COUNTS et al. discloses that the enclosed air channel comprises air outlets, 394, to the heating chamber (Figures 7-10; Column 14, lines 32-45), between the base and inner wall.
With respect to claims 20 and 21, COUNTS et al. discloses a plurality of closed channels, 352, each having a rib, 353, between inner and outer wall (Figures 6 and 7A; Column 12, lines 5-25).
With respect to claim 23, COUNTS et al. disclose a temperature sensor configured to sense the temperature of the heater directly (e.g., thermally communicate with the heating element) (Column 2, lines 10-35). It also would have been obvious to have the thermal communication when the heater is connected to the device so that the temperature can be measured while in operation.
With respect to claim 28, COUNTS et al. does not explicitly disclose whether the base, inner wall, heating element and outer wall are removably connected. The courts have generally held that making parts separable is prima facie obvious. See, In re Dulberg, 289 F.2d 522, 523, 129 USPQ 348, 349 (CCPA 1961). MPEP 2144.04, V, C. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide the inner wall, outer wall, heating element and base as removable parts so that if further cleaning is necessary, it can be done by completely disassembling the receptacle. Moreover, by having the heating element removable from the base, it can be replaced if broken or damaged.
With respect to claim 33, COUNTS et al. discloses a removable article received within the heater assembly of the device (Figures 2-3C and 10; Column 4, lines 1-15)
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Claim(s) 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over COUNTS et al. (US 5,954,979) in view of COUNTS et al. (US 5,666,978) as applied to claims 1-8, 10, 11, 16, 19-21, 23, 28, 33 and 34 above, and further in view of SMITH et al. (US 2014/0261493).
With respect to claim 29, modified COUNTS et al. does not explicitly disclose that rotation of the base relative to the device allows the heating device to secure to or be removed from the device.
SMITH et al. discloses an electronic smoking article wherein the heater assembly is connected to the battery assembly by rotation of the connection (Paragraph [0026]) in order to provide easy assembly and disassembly. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide a “rotation” type connection between the heater and device of modified COUNTS et al., as taught by SMITH et al. so that these components can be easily assembled and disassembled.
Allowable Subject Matter
Claims 14, 15, 25 and 26 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: Regarding claim 14, COUNTS et al. discloses that the outlets are in the base, and not the inner wall, per se.
Regarding claim 25, the art does not teach or suggest a device analogous to COUNTS et al. that also thermally connects the sensor to the heater using a plate, per se.
Conclusion
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 ALEX B EFTA whose telephone number is (313)446-6548. The examiner can normally be reached 8AM-5PM EST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Tucker can be reached at 571-272-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALEX B EFTA/Primary Examiner, Art Unit 1745