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
This office action is in response to Applicant’s arguments dated 12/02/2025.
Claims 14-28 are pending and are subject to this Office Action.
Response to Arguments
Applicant’s arguments, see pages 2-6, filed 12/02/2025, with respect to the 103 rejection of claim 14 have been fully considered and are persuasive. Fleischhauer, as previously interpreted, does not teach that the push rod protrudes from a body of the device. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground of rejection is made in view of a new interpretation of Fleischhauer.
The following is a modified rejection based on Applicant’s arguments. The new Examiner is providing a new rejection over a new interpretation of the same primary art reference Fleischhauer in view of newly found prior art Blandino et al. (US 20170055584 A1).
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.
Claim 18 is rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Regarding claim 18, the claim recites the limitation “substantially all of the side walls” on line 2. It is unclear as to the scope of the term “substantially”, as the term is subjective to reader interpretation. Furthermore, no definition or degree of what constitutes “substantially” is provided in the specification. Thus, the claim is indefinite. For examination purposes, any amount of the side wall formed from a radially porous material will be interpreted to meet the limitation.
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 14-16 and 18-28 are rejected under 35 U.S.C. 103 as being unpatentable over Fleischhauer et al. (US 5726421 A) in view of Blandino et al. (US 20170055584 A1).
Regarding claim 14, Fleischhauer teaches an aerosol-generating device (smoking system 21; col. 4, lines 34-37) for generating an aerosol from an aerosol- forming substrate (cigarette 23), the aerosol-generating device comprising:
a cavity (orifice 27) having an opening configured to receive the aerosol-forming substrate, the cavity being defined by side walls (air channel sleeve 87; Fig. 2A; col. 6, line 52) extending away from the opening;
a cavity base (plunger 210 with front face 212; col. 7, line 29) configured to support the aerosol-forming substrate, or an aerosol- generating article comprising the aerosol-forming substrate, when received in the cavity, wherein the cavity base is arranged to be longitudinally movable within the side walls defining the cavity (col. 7, lines 29-33);
a push rod (arm 230 and sliding actuator 240; col. 7, lines 51-57) configured to move the cavity base, wherein the push rod protrudes from a body of the aerosol-generating device when the aerosol-forming substrate, or the aerosol- generating article comprising the aerosol-forming substrate, is positioned within the cavity (button 245 of sliding actuator 240 protrudes from the outer surface of the lighter housing; Fig. 4C; col. 7, lines 59-67); and
at least one heating element arranged to generate a fluctuating magnetic field (heating fixture 39 and heating elements 120 may be an induction heating system; col. 5, lines 33-37).
Fleischhauer does not explicitly teach an induction coil located external to the cavity.
Blandino, directed to an aerosol-generating device (system 1000; [0088]) for generating an aerosol from an aerosol-forming substrate (smokable material 30; [0088]), comprising: a cavity (cavity 18; [0055]) defined by side walls (body 12; [0056]), and an induction heating mechanism (magnetic field generator 112; [0088]), teaches that the induction heating mechanism is an induction coil (coil 114; Fig. 5; [0088]) located external to the cavity and arranged to generate a fluctuating magnetic field.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Fleischhauer by using an induction coil located external to the cavity as taught by Blandino as the induction heater because both Fleischhauer and Blandino are directed to aerosol-generating devices that may use induction heating to generate an aerosol from an insertable substrate, Fleischhauer is silent to a particular configuration of induction heating system and one with ordinary skill would be motivated to look to prior art for a known and suitable induction heater, and this involves applying a known teaching to a similar product to yield predictable results.
Regarding claim 15, Fleischhauer is silent as to the material of the side walls of the cavity.
However, Fleischhauer teaches that the device housing may be formed from a non-susceptor material or a non-magnetic material to be heat resistant (col. 4, lines 53-55 teaches that the body may be polymer-based).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Fleischhauer by making the side walls 87 from the same non-susceptor material as the body because Fleischhauer is silent to the exact material of the side walls and one with ordinary skill would be motivated to look to the same device for a known and suitable material, and this involves applying a known teaching to a similar component of the same device to yield predictable results.
Regarding claim 16, Fleischhauer teaches that the side walls of the cavity are permeable to air thereby allowing a radial influx of air into the cavity through the side walls (passageway 47 provides air through the sidewall of the cavity; Figs. 2A-C; col. 8, lines 27-29, lines 54-58).
Regarding claim 18, Fleischhauer teaches that substantially all of the side walls are formed from a radially porous material (passageway 47 provides air through the sidewall of the cavity. Thus, the sidewall is formed of a radially porous material; Figs. 2A-C; col. 8, lines 27-29, lines 54-58).
Regarding claim 19, Fleischhauer teaches that the cavity base 210 is longitudinally movable between a first position (extended or eject position B; Fig. 2B) and a second position (retracted or operational position A; Fig. 2A), and wherein in the first position the cavity base is positioned closer to the opening of the cavity than in the second position (col. 7, lines 32-34; col. 8, line 6-26).
Regarding claim 20, Fleischhauer teaches a latch (detent 230A; col. 8, lines 6-26) configured to releaseably retain the cavity base in the second position.
Regarding claim 21, Fleischhauer teaches a latch (detent 230B; col. 8, lines 6-26) configured to releaseably retain the cavity base in the first position.
Regarding claim 22, Fleischhauer teaches that the first position is defined by a stop, the stop acting to prevent the cavity base from further movement towards the opening of the cavity (detent 230B; col. 8, lines 6-26).
Regarding claim 23, Fleischhauer teaches that the cavity base 210 has a first surface 212 facing the cavity opening and a second surface (inner and lower surfaces of 210 formed by cavity 215; Fig. 2A; col. 7, lines 51-55) facing away from the cavity opening, and wherein the second surface is coupled with or connected to the push rod 230, the push rod extending away from the second surface (Fig. 2A; col. 7, lines 51-55).
Regarding claim 24, Fleischhauer teaches that the cavity base 210 and the push rod 230 form a manually actuatable ejector configured to facilitate removal of the aerosol-forming substrate from the cavity (col. 8, lines 18-25; col. 9, lines 22-36).
Regarding claim 25, Fleischhauer teaches that the cavity base is biased by a biasing element (spring 250; col. 9, lines 62-67).
Regarding claim 26, Fleischhauer teaches that the biasing element 250 urges the cavity base in a direction towards the opening of the cavity (col. 8, lines 2-5; col. 9, lines 62-67).
Regarding claim 27, the Examiner notes that the limitations directed to the device being configured to operate with different aerosol-generating articles is a functional language limitation directed to a manner of operating the apparatus. The device taught by the prior art comprises all structural components required to be capable of use in this manner (e.g., an inductive heating element that would be expected to work with articles of different susceptor configurations). Therefore, the limitation does not differentiate the claimed apparatus from that of the prior art. See MPEP § 2114 (II).
Regarding claim 28, Fleischhauer teaches an aerosol-generating system comprising an aerosol-generating device according to claim 14 and an aerosol-generating article (cigarette 23; col. 4, lines 34-37) configured to be received within the cavity of the aerosol-generating device, the aerosol-generating article comprising an aerosol-forming substrate (tobacco).
Fleischhauer does not explicitly teach that the aerosol-generating article comprises a susceptor configured to heat the aerosol-forming substrate when coupled with a fluctuating magnetic field generated by the induction coil of the aerosol-generating device.
Blandino teaches that an article for use with the induction coil 114 comprises a susceptor (closed circuit 20; [0057], [0050-0051]) configured to heat the aerosol-forming substrate when coupled with a fluctuating magnetic field generated by the induction coil of the aerosol-generating device.
It would be obvious to one having ordinary skill in the art that upon modification to use the induction coil of Blandino, the device of Fleischhauer would be used with an article comprising a susceptor.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Fleischhauer and Blandino as applied to claim 16 above, and further in view of Force et al. (US 20170325505 A1).
Regarding claim 17, Fleischhauer teaches that the side walls 87 have a longitudinal dimension extending away from the opening of the cavity 27 (Fig. 2A).
Fleischhauer does not teach that between 50% and 100% of a longitudinal dimension of the side walls is formed from a radially porous material.
Force, directed to an aerosol-generating device (aerosol generating smoking system; [0079]) for generating an aerosol from a substrate (material 41), comprising a cavity being defined by side walls (housing 4), teaches that air-permeable portions may be provided along the side walls ([0105-0106]; Fig. 11 depicts at least 50%. This would be considered to be "radially porous").
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Fleischhauer by making the side walls 87 be between 50% and 100% formed from a radially porous material as taught by Force because both Fleischhauer and Force are directed to aerosol-generating devices comprising substrate-receiving cavities defined by side walls, Force teaches that it is known in the art to have air permeable side walls and one having ordinary skill in the art would recognize that this would provide more even airflow to the substrate, and this involves applying a known teaching to a similar device to yield predictable results.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Charlotte Davison whose telephone number is (703)756-5484. The examiner can normally be reached M-F 8:00AM-5:00PM.
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/C.D./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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