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 1, 2, 4-9, 12- 16 and 18-24 are pending.
Claims 14, 18, 19, 20 and 21 are withdrawn.
Election/Restrictions
Claims 14, 18, 19, 20 and 21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Group and Species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 4/6/2026.
Applicant's election with traverse of Group I, Species 1A and Species 2A in the reply filed on 4/6/2026 is acknowledged. The traversal is on the ground(s) that (i) Group I and Group II are both directed towards the same concept: an air inlet tube that has a bend, resulting in it being angularly offset from the longitudinal axis, and thus, the overlap of technical relationship among these inventions is plainly present and has one or more of the same corresponding special technical features; (ii) Applicant does not consider either of the species to be patentably distinct species that would require additional search and/or examination because the two options for species are believed to form a part of the same embodiment and in view of the Examiner's comments with respect to the relationship of the aerosol provision device features in Group I and II, Applicant questions the need, as well as the ability, to readily select a single species or a single grouping of patentably indistinct species.
This is not found persuasive because, with respect to (i), the application contains groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1. because even though Groups I-IV require a shared technical feature, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of WO2019234143; and with respect to (ii) the species are deemed to lack unity of invention because they are not so linked as to form a single general inventive concept under PCT Rule 13.1. The Applicant has not persuasively argued how, in view of PCT Rule 13.1, the restriction and election requirement is not proper.
The requirement is still deemed proper and is therefore made FINAL.
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.
Claim(s) 1, 2, 4-9, 13, 15, 16, 22, 23 and 24 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jochnowitz (WO2019234143).
US20210235762 is applied in place of WO2019234143. All citations to ‘Jochnowitz’ refer to US20210235762.
Regarding claim 1, Jochnowitz teaches an aerosol provision device (10) comprising:
a heater assembly (20) having:
a heating chamber (30) defining a longitudinal axis arranged to receive at least a portion of an article comprising aerosol generating material (60), and
a heating element (43) configured to heat aerosol generating material received in the heating chamber (30); and
an air inlet member (18) forming an air passage at one end of the heating chamber, the air passage defining part of a flow path with the heating chamber (Fig. 1);
wherein at least part of the air passage defined by the air inlet member is offset from the longitudinal axis of the heating chamber (Fig. 1).
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Regarding claim 2, wherein the offset is an angular offset (Fig. 1).
Regarding claim 4, wherein the at least part of the air passage extends substantially radially (Fig. 1).
Regarding claim 5, wherein the aerosol provision device comprises a housing (11), and the air passage extends to an aperture in the housing (Fig. 1).
Regarding claims 6 and 7, wherein the air passage extends between the heating chamber (30) and the aperture (18) (Fig. 1), wherein the aperture is an air inlet to the flow path (see annotated Fig. 1, above).
Regarding claim 8, further comprising a battery (16, [0065]), wherein the air passage communicates with the housing between the heater assembly (20) and the battery (16) (Fig. 1).
Regarding claim 9, further comprising insulation (33) between the heater assembly (20) and the battery (16).
Regarding claim 13, wherein the air passage extends from a base (32) of the heating chamber (Fig. 1).
Regarding claim 15, wherein the heating element (43) at least partially surrounds the heating chamber (30) (Fig. 1).
Regarding claim 16, wherein the heating element comprises a susceptor which is heatable by penetration with a varying magnetic field ([0064]).
Regarding claim 22, wherein the aerosol provision device is a tobacco heating product ([0044]).
Regarding claim 23, Jochnowitz teaches an aerosol provision system (1) comprising:
the aerosol provision device (10) according to claim 1 (see rejection of claim 1, above) ; and
the article (60) comprising the aerosol generating material (71, 72 and 73), wherein the article is dimensioned to be at least partially received within the heater assembly ([0059]).
Regarding claim 24, Jochnowitz teaches an aerosol provision system (1) comprising: the aerosol provision device according to claim 23 (rejection of claim 23, above); and the article (60) comprising a non-liquid aerosol generating material ([0045]), wherein the article is dimensioned to be at least partially received within the heater assembly ([0059]).
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.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jochnowitz.
Regarding claim 12, Jochnowitz teaches that the air inlet member comprises a passage (in 32 and 42).
Jochnowitz does not expressly teach that the passage is a tubular member.
However, the courts have held that changes in shape are a matter of design choice which a person of ordinary skill in the art would have found obvious in the absence of new or unexpected results that the particular configuration of the claimed container was significant. See MPEP 2144.04. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date to have made the passage of Jochnowitz a tubular member with a reasonable expectation of success and predictable results.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YANA B KRINKER whose telephone number is (571)270-7662. The examiner can normally be reached Monday, Wednesday, Thursday and Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at 571-270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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YANA B. KRINKER
Examiner
Art Unit 1755
/YANA B KRINKER/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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