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 .
Status of the Claims
Claims 29-48 are pending and are subject to this Office Action. This is the first Office Action on the merits of the claims.
Election/Restrictions
Applicant’s election without traverse of Claims 29-44 in the reply filed on 12 September 2025 is acknowledged. Claims 45-48 are withdrawn.
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 31, 33, 35, 37 and 40 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.
The term “about” in Claims 31, 33, 35, 37 and 40 is a relative term which renders the claim indefinite. The term “about” 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 examination purposes, the following interpretations will be made:
Claim 31, “about 2 millimeters” will be “2 millimeters”
Claim 33, “about 2.68 millimeters” will be “2.68 millimeters”
Claim 35, “proximal distance is about 11” will be “proximal distance is 11”
Claim 37, “about 9 percent” will be “9 percent”
Claim 40, “about 3 millimeters” will be “3 millimeters”
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.
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 29-42 are rejected under 35 U.S.C. 103 as being unpatentable over Reevell (Publication No. US20210307390A1, henceforth referred as Reevell '390) in view of Fallon et al (Publication No. US20220218033A1).
Regarding Claim 29, Reevell ‘390 discloses an aerosol generation device with a heater assembly comprising:
an elongate heating chamber (108) configured to heat an aerosol-forming substrate (see Fig. 4; [0070]; heating chamber shown to be elongate in the vertical direction;
and a heating element (Heater 124) arranged around the elongate heating chamber (see Figs. 6-7; [0100, 112]; the heater 124 comprises of the heating element 164 which is disclosed to be disposed on the outer surface around the heating chamber);
wherein the elongate heating chamber has a first length and the heating element has a second length (see annotated Figure 4);
wherein the first length of the elongate heating chamber is greater than the second length of the heating element, such that there is a proximal distance between a proximal end of the elongate heating chamber and a proximal end of the heating element (see annotated Figure 4);
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Reevell ‘390 does not disclose the proximal distance is between 0.1 millimeter and 4 millimeters. However, it should be noted that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation (see MPEP § 2144.05.II).
In this case, Reevell ‘390 discloses that the heater/heating element can extend in varying lengths over the length of the side wall (126) which forms the heating chamber [0112]. For example, the heater could extend only over a part of the length of the side wall [0012], which would subsequently lead to a proximate distance between the chamber’s length and the heater’s length, or the heater could extend the entire length of the side wall [0012], leading to no proximate distance due as the heater and chamber would have the same length.
Therefore, one ordinarily skilled in the art could take Reevell ‘390’s disclosure regarding the heater’s extension length being a partial or entire length of the heating chamber’s side wall length, to reasonably routinely experiment with the heater length such that the proximal distance between the two lengths is between 0.1 millimeter and 4 millimeters.
Additionally, Fallon, directed to an aerosol-provision device, discloses a heating assembly comprising a heating element (1200) and heating chamber (1010), wherein the heating element’s length is designed such that when an aerosol-generating material is inserted into the heating chamber, a portion of said material does not overlap with the heating element such that it stays unheated, implying that the length of the heating element (i.e., second length) is less than that of the heating chamber (first length) (see Figs. 7-8; [0011-0012, 0135, 0138-0140]; discloses the heating chamber as an article-receiving chamber; discloses that the device can be configured such that the heating element does not overlap with parts of the aerosol-generating material when fully inserted in the chamber).
This distance where there is no overlap with the heating element can occur on either the distal end as a distal distance (First distance 1001) and/or proximal end as a proximal distance (Second distance 1002) ranging from 2-10 mm, which may each act to collect and/or absorb condensation that might build up within the device (see Fig. 7a-b; [0145-0148]). The claimed proximal distance range of 1-4 mm overlap with the range disclosed by Fallon and are therefore considered prima facie obvious (see MPEP § 2144.05.I).
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to adjust the proximal distance disclosed by Reevell ‘390 to have an overlapping range of 2-4 mm as disclosed by Fallon, as both are directed to a an aerosol provision device, where Fallon teaches the advantage of having a proximal distance such that there are unheated portions of the aerosol-generating material when said material is inserted in the heating chamber, to collect and/or absorb condensation that might build up within the device [0147].
Regarding Claim 30, Modified Reevell ‘390 discloses a proximal distance (Fallon, 1002) that ranges from 2-10 mm which overlaps with the claimed range (Fallon, [0148]). The claimed proximal distance range of 1-3 mm overlap with the range disclosed by Fallon and are therefore considered prima facie obvious (see MPEP § 2144.05.I).
Regarding Claim 31, Modified Reevell ‘390 discloses a proximal distance (i.e., first distance) of 2 millimeters (Fallon, [0148]; discloses the distance can be equal to 2 mm).
Regarding Claim 32, Modified Reevell ‘390 does not explicitly disclose a ratio of an inner diameter of the elongate heating chamber (108) to the proximal distance is between 2 and 4. However, it should be noted that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation (see MPEP § 2144.05.II).
In this case, Modified Reevell ‘390 discloses the proximal distance ranges from 2-4 mm (see Claim 29 rejection for overlapping ranges) and also discloses that the inner diameter of the elongate heating chamber (108) is 10 mm or less (Reevell, [0126]). Modified Reevell also discloses that the heater/heating element can extend in varying lengths over the length of the side wall (126) which forms the heating chamber [0112].
Therefore, it would have been obvious to one ordinarily skilled in the art to take the proximal distance lengths and inner diameter dimension disclosed by Modified Reevell ‘390 to routinely optimize the heating element length and heating chamber diameter such that the ratio of an inner diameter of the elongate heating chamber (108) to the proximal distance is between 2 and 4.
Regarding Claim 33, Modified Reevell ‘390 does not explicitly disclose a ratio of an inner diameter of the elongate heating chamber (108) to the proximal distance is 2.68. However, it should be noted that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation (see MPEP § 2144.05.II).
In this case, Modified Reevell discloses the proximal distance ranges from 2-4 mm (see Claim 29 rejection for overlapping ranges) and also discloses that the inner diameter of the elongate heating chamber (108) is 10 mm or less (Reevell, [0126]). Modified Reevell also discloses that the heater/heating element can extend in varying lengths over the length of the side wall (126) which forms the heating chamber [0112].
Therefore, it would have been obvious to one ordinarily skilled in the art to take the proximal distance lengths and inner diameter dimension disclosed by Modified Reevell ‘390 to routinely optimize the heating element length and heating chamber diameter such that the ratio of an inner diameter of the elongate heating chamber (108) to the proximal distance is 2.68.
Regarding Claim 34, Modified Reevell ‘390 does not explicitly disclose a ratio of a length of the elongate heating chamber (108) to the proximal distance is between 5.5 and 22. However, it should be noted that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation (see MPEP § 2144.05.II).
In this case, Modified Reevell ‘390 discloses the proximal distance ranges from 2-4 mm (see Claim 29 rejection for overlapping ranges) and also discloses that the length of the elongate heating chamber (108) is 30-40 mm (Reevell, [0088]). Modified Reevell ‘390 also discloses that the heater/heating element can extend in varying lengths over the length of the side wall (126) which forms the heating chamber [0112].
Therefore, it would have been obvious to one ordinarily skilled in the art to take the proximal distance and heating chamber lengths disclosed by Modified Reevell ‘390 to routinely optimize the heating element and heating chamber length such that the ratio of a length of the elongate heating chamber (108) to the proximal distance is between 5.5 and 22.
Regarding Claim 35, Modified Reevell ‘390 does not explicitly disclose a ratio of a length of the elongate heating chamber (108) to the proximal distance is 11. However, it should be noted that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation (see MPEP § 2144.05.II).
In this case, Modified Reevell ‘390 discloses the proximal distance ranges from 2-4 mm (see Claim 29 rejection for overlapping ranges) and also discloses that the length of the elongate heating chamber (108) is 30-40 mm (Reevell ‘390, [0088]). Modified Reevell ‘390 also discloses that the heater/heating element can extend in varying lengths over the length of the side wall (126) which forms the heating chamber [0112].
Therefore, it would have been obvious to one ordinarily skilled in the art to take the proximal distance and heating chamber lengths disclosed by Modified Reevell ‘390 to routinely optimize the heating element and heating chamber length such that the ratio of a length of the elongate heating chamber (108) to the proximal distance is 11.
Regarding Claim 36, Modified Reevell ‘390 does not explicitly disclose the proximal distance is between 6 percent and 14 percent of a length of the elongate heating chamber (108). However, it should be noted that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation (see MPEP § 2144.05.II).
In this case, Reevell ‘390 discloses that the heater/heating element can extend in varying lengths over the length of the side wall (126) which forms the heating chamber [0112]. For example, the heater could extend only over a part of the length of the side wall [0012], which would subsequently lead to a proximate distance between the chamber’s length and the heater’s length, or the heater could extend the entire length of the side wall [0012], leading to no proximate distance due as the heater and chamber would have the same length.
Therefore, one ordinarily skilled in the art could take Reevell ‘390’s disclosure regarding the heater’s extension length being a partial or entire length of the heating chamber’s side wall length, to reasonably routinely experiment with the heater length such that the proximal distance is between 6 percent and 14 percent of a length of the elongate heating chamber.
Regarding Claim 37, Modified Reevell ‘390 does not explicitly disclose the proximal distance is 9 percent of a length of the elongate heating chamber (108). However, it should be noted that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation (see MPEP § 2144.05.II).
In this case, Reevell ‘390 discloses that the heater/heating element can extend in varying lengths over the length of the side wall (126) which forms the heating chamber [0112]. For example, the heater could extend only over a part of the length of the side wall [0012], which would subsequently lead to a proximate distance between the chamber’s length and the heater’s length, or the heater could extend the entire length of the side wall [0012], leading to no proximate distance due as the heater and chamber would have the same length.
Therefore, one ordinarily skilled in the art could take Reevell ‘390’s disclosure regarding the heater’s extension length being a partial or entire length of the heating chamber’s side wall length, to reasonably routinely experiment with the heater length such that the proximal distance is 9 percent of a length of the elongate heating chamber.
Regarding Claim 38, Reevell ‘390 further discloses a distal distance between a distal end of the elongate heating chamber (108) and a distal end of the heating element (124) (see annotated Fig. 4).
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Regarding Claim 39, Reevell ‘390 does not explicitly disclose the distal distance is between 1 millimeter and 6 millimeters. However, it should be noted that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation (see MPEP § 2144.05.II).
In this case, Reevell discloses that the heater/heating element can extend in varying lengths over the length of the side wall (126) which forms the heating chamber [0112]. For example, the heater could extend only over a part of the length of the side wall [0012], which would subsequently lead to a proximate distance between the chamber’s length and the heater’s length, or the heater could extend the entire length of the side wall [0012], leading to no proximate distance due as the heater and chamber would have the same length.
Therefore, one ordinarily skilled in the art could take Reevell’s disclosure regarding the heater’s extension length being a partial or entire length of the heating chamber’s side wall length, to reasonably routinely experiment with the heater length such that the distal distance between the two lengths is between 1 millimeter and 6 millimeters.
Additionally, Fallon, directed to an aerosol-provision device, discloses a heating assembly comprising a heating element (1200) and heating chamber (1010), wherein the heating element’s length is designed such that when an aerosol-generating material is inserted into the heating chamber, a portion of said material does not overlap with the heating element such that it stays unheated, implying that the length of the heating element (i.e., second length) is less than that of the heating chamber (first length) (see Figs. 7-8; [0011-0012, 0135, 0138-0140]; discloses the heating chamber as an article-receiving chamber; discloses that the device can be configured such that the heating element does not overlap with parts of the aerosol-generating material when fully inserted in the chamber).
This distance where there is no overlap with the heating element can occur on either the distal end as a distal distance (First distance 1001) and/or proximal end as a proximal distance (Second distance 1002) ranging from 2-10 mm, which may each act to collect and/or absorb condensation that might build up within the device (see Fig. 7a-b; [0145-0148]). The claimed distal dance range of 1-6 mm overlap with the range disclosed by Fallon and are therefore considered prima facie obvious (see MPEP § 2144.05.I).
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to adjust the distal distance disclosed by Reevell ‘390 to have an overlapping range of 2-6 mm as disclosed by Fallon, as both are directed to a an aerosol provision device, where Fallon teaches the advantage of having a distal distance such that there are unheated portions of the aerosol-generating material when said material is inserted in the heating chamber, to collect and/or absorb condensation that might build up within the device [0147].
Regarding Claim 40, Modified Reevell ‘390 further discloses the distal distance (i.e., second distance) is 3 millimeters (Fallon, [0148]; discloses a distal distance of 2-10 mm, which the claimed distal distance falls within).
Regarding Claim 41, Reevell ‘390 further discloses the elongate heating chamber (108) is a hollow tube (see Figs. 10a-b; [0071]; the heating chamber is illustrated as a hollow tube).
Regarding Claim 42, Reevell ‘390 further discloses the elongate heating chamber (108) comprises stainless steel [0067].
Claim 43-44 are rejected under 35 U.S.C. 103 as being unpatentable over Reevell (Publication No. US20210307390A1, henceforth referred as Reevell '390) in view of Fallon et al (Publication No. US20220218033A1) as applied to Claim 29 above, and further in view of Reevell (Publication No. US20220377853A1, henceforth referred as Reevell '853).
Regarding Claim 43, Reevell ‘390 further discloses the heating element (124) comprises one or more electrically conductive tracks (150) on a substrate (Backing Film 166) formed from polyimide material (see Fig. 7; [0100-0102]). Reevell does not explicitly state that the substrate (166) is electrically insulating.
However, Reevell ‘853, directed to a heater (i.e., heating element), discloses the heater comprise a flexible electrically insulating backing film (i.e., substrate), wherein the film can be a polyimide film [Abstract, 0014].
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, that the polyimide backing film disclosed by Reevell ‘390 can be considered an electrically insulating backing film (i.e., substrate) as evidenced by Reevell ‘853, as both are directed to a heater with a backing film substrate, where Reevell ‘853 explicitly notes that said backing film substrate of polyimide is an electrically insulating substrate material [0014].
Regarding Claim 44, Reevell ‘390 further discloses the heating element (124) is wrapped around the elongate heating chamber (108) ([0100-0102, 0118]; discloses that the heater 124 is wrapped around the heating chamber). Reevell also discloses that the heating element comprises a polyimide backing film substrate Reevell does not explicitly state that the heating element (124) is flexible.
However, Reevell ‘853, directed to a heater (i.e., heating element), discloses the heater comprise a flexible electrically insulating polyimide backing film which allows improved precision and greater freedom in shape of the heating element ([Abstract, 0014, 0036]; the backing film is a part of the overall heating element which implies that the heating element component is also flexible like its flexible backing film sub-component).
Therefore, it would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention, to construct the heating element disclosed by Reevell ‘390 using a flexible electrically insulating backing film (i.e., substrate) to create a flexible heating element as disclosed by Reevell ‘853, as both are directed to a heater with a backing film substrate, where Reevell ‘853 teaches the advantage of using flexible components to construct the heating element to provide improved precision and greater freedom in shape of the heating element [0036].
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Vu P Pham whose telephone number is (703)756-4515. The examiner can normally be reached M-Th (7:30AM-4:00PM EST).
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/V.P./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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