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 .
Election/Restrictions
Claims 10-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 10/29/2025. Claims 1-15 and 17-18 remain pending. Claims 1-9 and 17-18 are examined herein.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 29, shown in Figs. 5-6.
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
The following title is suggested: WICK FORMED FROM SINTERED METAL POWDER.
The disclosure is objected to because the brief description of the drawings (see specification p. 9-10) does not refer to Fig. 14 (see MPEP 608.01(f) and 37 CFR 1.74, requiring the brief description of the drawings to refer to every figure included in the specification).
Appropriate correction is required.
Claim Interpretation
Claims 2-3 recite a “bubble test pore size”, but the claims do not define any parameters of the bubble test and those parameters are not necessarily well-known to one of ordinary skill in the art. The specification explains that the bubble test refers to international standard ISO 4003-1977 (E) (Substitute Specification-Clean p. 4; provided in IDS dated 05/24/2023). The ISO standard explains that the bubble test is a method for the determination of the pore size of permeable sintered powder metallurgical materials (ISO p. 3, 1. SCOPE AND FIELD OF APPLICATION). The bubble test should be considered a quality control test and not a test for defining filter grades or determining exact pore size/distribution (id.). Therefore, one of ordinary skill in the art would expect a prior art wick having a disclosed “pore size” to display the same or a similar “bubble test pore size” upon undergoing the bubble test according to ISO 4003-1977. Thus, the claimed bubble test pore sizes of “5 µm or greater” and “100 µm or less” are considered to be met by any permeable sintered powder metallurgical material in the prior art with a pore size of 5 µm or greater and 100 µm or less, respectively.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 4-7 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Davis (US 2024/0074484 A1).
Regarding claim 1, Davis is directed to an article for use with an aerosol provision system, the article comprising a wick formed from a sintered material (Abstract). The sintered material may comprise sintered metal powder [0023, 0025-26]. The wick is porous and enables a capillary effect for drawing liquid through it [0029] (which reads on “permeable” as claimed).
Regarding claim 4, Davis discloses that the porosity may be uniform across the wick [0029].
Regarding claim 5, Davis discloses forming the wick solely from a sintered metal powder [0023, 0025-26].
Regarding claims 6-7, the wick 37 delivers liquid from a store 38 to a heater 36 via capillary action ([0019, 0029], Fig. 1, showing wick 37 with elongate shape). The wicking specifically occurs “along or through” the wick 37 [0019] (which reads on “wherein the wick has an elongate form” per claim 6 and “wherein the wick is suitable for transporting a nicotine-containing solution along its length” per claim 7).
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.
Claims 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over Davis (US 2024/0074484 A1).
Regarding claims 2-3, Davis discloses the wick of claim 1 as set forth above. Davis fails to specifically disclose the wick having a “bubble test pore size of 5 µm or greater” per claim 2, nor “100 µm or less” per claim 3. However, Davis discloses a metal fibre wick with a typical mean pore size of about 32 microns [0027] (which falls within the ranges of claims 2-3). Davis further discloses the wick generally having a porosity of 30-85% and explains that any level of porosity may be employed depending on the material, pore size, and required wicking rate [0029]. One of ordinary skill in the art would expect Davis’ wick formed of sintered metal powder to have similar pore size to that of Davis’ wick formed of sintered metal fibres. Furthermore, although Davis does not explicitly recite a “bubble test” as claimed, the claimed bubble test pore size corresponds to the actual pore size of the wick (see Claim Interpretation). In sum, one of ordinary skill in the art would expect Davis’ wick formed of sintered metal fibres to have a pore size of about 32 microns, which renders claims 2-3 obvious.
Claims 8-9 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Davis (US 2024/0074484 A1) as applied to claims 1 and 6, in view of Macko (US 2014/238424 A1, provided in IDS dated 05/24/2023).
Regarding claim 8, Davis discloses the elongate wick as set forth above in the discussion of claim 6. However, Davis is silent on the length of the wick and thus fails to disclose “wherein the wick has a length of between 10 mm and 25 mm” as claimed.
Macko is directed to an electronic smoking article including a heater-wick element for wicking and vaporizing a liquid material (Abstract). The heater-wick element includes a sintered metal powder [0023-24]. The heater-wick element has a length of about 10-15 mm [0038], which overlaps the claimed range and therefore renders it obvious. See MPEP 2144.05(I); see also In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). One of ordinary skill in the art would recognize that Davis and Macko each disclose wicks formed from sintered metal for capillary absorption of a vaporizable liquid, and thus Macko’s wick length could appropriately and predictably be applied to Davis’ wick.
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 Davis by providing the wick with a length of about 10-15 mm as taught by Macko, because both Davis and Macko are directed to wicks for vaporizers, one of ordinary skill in the art seeking to implement Davis’ disclosure would recognize that Macko’s wick length is similarly suitable for Davis’ wick, 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).
Regarding claims 9 and 18, Davis discloses the wick formed from sintered metal powder as set forth above in the discussion of claim 1. Davis further discloses a wick made from a conductive material such as fibres of stainless steel 316L [0026-27]. However, Davis fails to specifically disclose using stainless steel 316L powder, and thus fails to disclose “wherein the sintered metal powder comprises stainless steel” per claim 9 and “wherein the stainless steel comprises 316L stainless steel” per claim 18.
Macko is directed to an electronic smoking article including a heater-wick element for wicking and vaporizing a liquid material (Abstract). The heater-wick element includes a sintered metal powder [0023-24]. The heater-wick element is formed of an electrically conductive metal in order to attain a targeted electrical resistance for heating [0030], the metal preferably being stainless steel [0032, 0036]. One of ordinary skill in the art would recognize that stainless steel could predictably be sintered in powder form to produce a suitable heater-wick element, as taught by Macko.
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to form Davis’ wick using powdered stainless steel 316L as taught by Davis and Macko, because both Davis and Macko are directed to wicks for vaporizers, both Davis and Macko teach using conductive stainless steel for heating, with Macko further teaching to select a material for targeted electrical resistance and Davis specifically disclosing stainless steel 316L, 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).
Regarding claim 17, Davis discloses the wick formed from sintered metal powder as set forth above in the discussion of claim 1. Davis fails to disclose “wherein the sintered metal powder comprises steel, iron, silver, copper, gold, platinum, tungsten, titanium, aluminium, vanadium, niobium, or mixtures thereof” as claimed.
Macko is directed to an electronic smoking article including a heater-wick element for wicking and vaporizing a liquid material (Abstract). The heater-wick element includes a sintered metal powder [0023-24]. The heater-wick element is formed of an electrically conductive metal in order to attain a targeted electrical resistance for heating [0030]. Suitable electrically resistive materials include titanium, platinum, niobium alloys, tungsten alloys, and iron alloys [0031] (which read on claim 17).
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to form Davis’ wick using one or more electrically resistive materials such as titanium, platinum, niobium alloys, tungsten alloys, and iron alloys as taught by Macko, because both Davis and Macko are directed to wicks for vaporizers, Macko teaches using a suitable electrically resistive material for targeted resistivity for heating, 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Lindars (WO 2019/153012 A1, previously cited) discloses a feeder including a wick [0022] which is considered particularly relevant to claims 1-7 and 9. The wick can be sintered metal such as passivated stainless steel [0022, 0066] and can have a filter size of about 30-90 microns [0062].
Duque (US 2018/177240 A1, provided in IDS dated 05/24/2023) discloses a thermal wick for electronic vaporizers (Title) which is considered particularly relevant to claims 1, 4-9, and 17-18. The wick is formed by sintering powdered metal particles such that the wick has desirable wicking characteristics such as porosity [0054]. The wick may have a length between 0.5-30 mm [0051], may include 316 stainless steel [0059], and may include steel, aluminum, and/or titanium [0032].
Buchberger (US 2017/027225 A1, provided in IDS dated 05/24/2023) discloses an aerosol-forming member which may be made of a porous granular sintered metal so as to form a capillary structure, and such member may be formed from stainless steel 316 [0050], which is considered particularly relevant to claims 1, 5, 9, and 18.
Chen (CN 111657550 A, English translation provided herewith) discloses a heating core for an electronic cigarette which is formed by sintering a porous powder metallurgy material (Title, [0028, 0052]), which is considered particularly relevant to claims 1 and 5.
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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/MICHAEL PATRICK MULLEN/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747