DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This office action is in response to applicants election filed December 1, 2025. Applicant has elected claims 16-28 for examination. Claim 29 has been withdrawn.
Election/Restrictions
Applicant’s election of Group 1, claims 16-28 in the reply filed on December 1, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Applicant’s request for rejoinder upon future allowance in prosecution or the filling of a divisional is acknowledged.
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 16-21 and 24-28 are rejected under 35 U.S.C. 103 as being unpatentable over US 20180279672 A1 (hereinafter DAVIS) as evidenced by NIST data sheets for propylene glycol and glycerin. DAVIS was made of record on applicant's information disclose statement filed June 15, 2023.
Regarding claim 16, DAVIS discloses aerosol delivery devices with wicks and heaters (abstract). DAVIS discloses a heater assembly for an aerosol-generating system (Fig. 8, aerosol delivery device, ¶72). DAVIS discloses a retention material (Fig.8, porous monolithic fluid transport element 836, ¶72) containing an aerosol-forming substrate (Fig.8, aerosol precursor composition 845, ¶72) in condensed form (¶72). DAVIS further discloses the aerosol-forming substrate comprising a first compound and a second compound. DAVIS discloses that the aerosol forming substrate may comprise a variety of components (¶57-¶58). DAVIS further discloses at least one airflow path defined through the retention material. DAVIS discloses that air is drawn into the air intake 818 and whisks to form a vapor (¶72). DAVIS discloses that the fluid transport element 836 is porous (¶72). DAVIS discloses that the use of a porous monolith fluid transport element is beneficial for improving the uniformity of heating (¶62-¶64). Therefore, there is at least one airflow path defined in the retention material. Further, DAVIS discloses an airflow path between inlet 818 and outlet 827 in Fig.8. DAVIS further discloses at least one heating element (Fig. 8, heater 834, ¶72) shaped to define an interior volume, the interior volume being filled with the retention material (as shown in Fig. 8). DAVIS further discloses wherein the interior volume has a cross-sectional area that decreases along a longitudinal axis. As shown in Fig. 8, the interior volume is a cone which inherently has a decreasing cross-sectional area. DAVIS further discloses wherein the at least one airflow path passes through a first central region of the interior volume and a second central region of the interior volume, the first and the second central regions being spaced-apart along the longitudinal axis. DAVIS discloses that the entire fluid retention element is porous. Therefore, there are many airflow paths defined in the retention material that are spaced apart along the longitudinal axis.
DAVIS may not disclose, but nonetheless teaches the second compound having a higher boiling point than the first compound and wherein a resistance of the at least one heating element increases along the longitudinal axis in a same direction that the cross-sectional area of the interior volume decreases.
DAVIS teaches that the aerosol precursor component may comprise a variety of components (¶57). These components can include both propylene glycol and glycerin. As evidenced by NIST, propylene glycol has a boiling point of 460 K and glycerin has a boiling point of 550 K. Therefore, in the embodiment of the aerosol precursor where both propylene glycol and glycerin are included in the aerosol precursor, there are two components having different boiling points.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have applied the teachings of DAVIS to result in the second compound having a higher boiling point than the first compound. A person of ordinary skill in the art would obviously customize the aerosol precursor to include multiple components because doing so would provide acceptable sensory and desirable performance characteristics to the user (¶58). One of ordinary skill in the art would immediately appreciate that the boiling points of such components would be different with predictable results to provide a customized vapor to the user.
DAVIS teaches that the energy requirements for vaporization when using a porous monolith can be minimized by increasing heat flux density (¶63). DAVIS teaches that the combination of the transport element and the heater adjusts the heat flux density and thus improves the heating and vapor formation (¶67-¶68). DAVIS teaches that this heat flux density is changed by adjusting the surface area and the geometry of the heat transport element relative to the coils of the heater to provide a less focused energy (¶67). DAVIS teaches that this is can be done by implementing a conical transport element (shown in Figs. 4 and 8, ¶67).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have applied the teachings of DAVIS to result in wherein a resistance of the at least one heating element increases along the longitudinal axis in a same direction that the cross-sectional area of the interior volume decreases. DAVIS discloses that the geometric arrangement of the transport element and the heating coil needs to be optimized to improve the heating and vapor formation. As seen in Figs. 4 and 8 and explained in ¶67-¶68, the shape and geometry of the device needs to be optimized and as such efficiency of the application of heat and power optimizes the function. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to change the geometry of the transport element and heating wire to improve heating efficiency as a matter of routine optimization since it has been held that "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05.II.A).
Further, courts have held that rearrangement of parts of the prior art is unpatentable. See In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) and MPEP 2144.04, IV., part C. Additionally, the courts have held changes in proportion or shape to be prima facie obvious in the absence of new or unexpected results. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.). One of ordinary skill in the art would appreciate that the change in shape would provide improved results of heating efficiency by controlling current through a resistive heating element (DAVIS ¶41).
Regarding claim 17, DAVIS teaches the heater assembly according to claim 16 as discussed above. DAVIS further discloses a heating element having a spiral shape. DAVIS illustrates a spiral shape heating element in Figs. 3-4 and 8.
Regarding claim 18, DAVIS teaches the heater assembly according to claim 16 as discussed above. DAVIS further teaches a first heating element and a second heating element, wherein an interior volume of the retention material is defined between the first heating element and the second heating element. DAVIS teaches that the use of two separate heaters can be beneficial to improve vapor production (¶74). DAVIS teaches that a first heater can be used to preheat the liquid in the transport element and a second heater for actually vaporizing the liquid (¶74). DAVIS teaches that in this can result in reduce the total power and/or the absolute temperature and/or the duration of heating required to provide a desired volume of vapor (¶74). In particular DAVIS teaches that a pre-heater may be between the heater and the reservoir (¶74). This is considered to be a location where the interior volume of the retention material is defined between the first and second heating element.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have applied the teachings of DAVIS to provide a first heating element and a second heating element, wherein an interior volume of the retention material is defined between the first heating element and the second heating element. A person of ordinary skill in the art would obviously include two heaters. Doing so would reduce the total power and/or the absolute temperature and/or the duration of heating required to provide a desired volume of vapor (¶74).
Regarding claim 19, DAVIS teaches the heater assembly according to claim 18 as discussed above. DAVIS further teaches wherein a separation between the first heating element and the second heating element decreases along the longitudinal axis in the same direction that the cross-sectional area of the interior volume decreases. This claim is considered to be a recitation of rearrangement of parts. Courts have held that rearrangement of parts of the prior art is unpatentable. See In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) and MPEP 2144.04, IV., part C. In this case, a person of ordinary skill in the art would modify geometry of the device to improve heating efficiency with predictable results when two heaters are involved.
Regarding claim 20, DAVIS teaches the heater assembly according to claim 16 as discussed above. DAVIS further teaches a minimum distance from the first central region to the heating element is greater than a minimum distance from the second central region to the heating element. This is considered a change in proportion of the existing taught parts of DAVIS. The courts have held changes in proportion or shape to be prima facie obvious in the absence of new or unexpected results. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984) (emphasis added), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.). One of ordinary skill in the art would obviously optimize and change distances because doing so would provide improved results of heating efficiency by controlling current through a resistive heating element (DAVIS ¶41).
Regarding claim 21, DAVIS teaches the heater assembly according to claim 16 as discussed above. DAVIS further discloses the at least one heating element is a resistive heating element (¶36).
Regarding claim 24, DAVIS teaches the heater assembly according to claim 16 as discussed above. DAVIS further discloses wherein the at least one airflow path comprises a first airflow path defined through the retention material that passes through the first central region in a direction perpendicular to the longitudinal axis. As discussed above in the rejection of claim 16, since the retention material is porous throughout there are many airflow paths including air paths in a direction perpendicular to the longitudinal axis.
Regarding claim 25, DAVIS teaches the heater assembly according to claim 16 as discussed above. DAVIS further discloses an aerosol-generating system (Fig. 8, aerosol delivery device 800, ¶72).
Regarding claim 26, DAVIS teaches the aerosol-generating system according to claim 25. DAVIS further discloses a power supply connectable to the heater assembly; and a controller to control power supplied to the heater assembly from the power supply (¶34). DAVIS discloses that the device can possess components such as a battery (i.e. power supply) and/or control body (i.e. controller) that are removably attached to the heater (¶34).
Regarding claim 27, DAVIS teaches the aerosol-generating system according to claim 25. DAVIS further teaches an aerosol-generating device, wherein a cartridge is removably receivable in the aerosol-generating device (¶35). DAVIS discloses that the devices include an outer housing that can be used with a separate shell (cartridge) that can include consumable elements (¶35). One of ordinary skill in the art would immediately recognize the inclusion of a number of components as taught in DAVIS (¶34) and that the use of multiple components provides for customization and replacement of parts.
Regarding claim 28, DAVIS teaches the heater assembly according to claim 16 as discussed above. DAVIS further discloses a cartridge for an aerosol-generating system (¶35, ¶38).
Claims 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over DAVIS and NIST as applied to claims 16-21 and 24-28 above, and further in view of US 20180289067 A1 (hereinafter COURBAT).
Regarding claim 22, DAVIS teaches the heater assembly according to claim 16 as discussed above. DAVIS does not disclose the at least one heating element is a susceptor.
COURBAT teaches an inductively heatable susceptor that includes an inductively heatable ceramic material configured to hold and heat an aerosol forming liquid (abstract). COURBAT teaches that a susceptor (Fig. 3, susceptor 210, ¶92) is positioned relative to the induction coil (Fig. 3, induction coil 170, ¶97) so as to be inductively heated by the alternating electromagnetic field (¶5, ¶97) COURBAT teaches that the susceptor allows for homogeneously heating the entire portion of the aerosol-forming liquid stored therein without the need to overheat. Furthermore, the susceptor ensures consistent vaping because the quantity of aerosol-forming liquid which may be heated is related to the porosity and the overall volume of the susceptor which are well controllable parameters (¶28)
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified DAVIS to provide the at least one heating element is a susceptor as taught in COURBAT. A person of ordinary skill in the art would obviously include a susceptor to be the heating element of the heater assembly. Doing so would homogeneously heating the entire portion of the aerosol-forming liquid and ensures consistent vaping (COURBAT ¶28).
Regarding claim 23, DAVIS teaches the heater assembly according to claim 16 as discussed above. DAVIS does not disclose wherein the retention material comprises a susceptor element and the at least one heating element forms or comprises an inductor coil configured to heat the susceptor element of the retention material.
COURBAT teaches an inductively heatable susceptor that includes an inductively heatable ceramic material configured to hold and heat an aerosol forming liquid (abstract). COURBAT teaches that a susceptor (Fig. 3, susceptor 210, ¶92) is positioned relative to the induction coil (Fig. 3, induction coil 170, ¶97) so as to be inductively heated by the alternating electromagnetic field (¶5, ¶97) COURBAT teaches that the susceptor allows for homogeneously heating the entire portion of the aerosol-forming liquid stored therein without the need to overheat. Furthermore, the susceptor ensures consistent vaping because the quantity of aerosol-forming liquid which may be heated is related to the porosity and the overall volume of the susceptor which are well controllable parameters (¶28). COURBAT teaches embodiments where the susceptor element is the retention material and where the susceptor is a part of the retention material (¶28).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified DAVIS to provide wherein the retention material comprises a susceptor element and the at least one heating element forms or comprises an inductor coil configured to heat the susceptor element of the retention material as taught in COURBAT. A person of ordinary skill in the art would obviously include a susceptor to be the heating element of the heater assembly. Doing so would homogeneously heating the entire portion of the aerosol-forming liquid and ensures consistent vaping (COURBAT ¶28).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE L MOORE whose telephone number is (313)446-6537. The examiner can normally be reached Mon - Thurs 9 am to 5 pm.
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/STEPHANIE LYNN MOORE/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747