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, 13- 16 and 18-24 are pending.
Claims 1, 23 and 24 have been amended.
Claims 14, 18, 19, 20 and 21 are withdrawn.
Claim 12 has been cancelled.
Response to Arguments
Applicant's arguments filed 8/4/2026 have been fully considered but they are not persuasive.
The Applicant argues that Jachnowitz does not disclose a discrete air inlet member, let alone an air inlet member that comprises a tubular member because a tubular member defines a distinct structural passage for air which provides a specific configuration in which the airflow path may be isolated from the surrounding components and may provide a more controlled or sealed pathway through the device.
The Examiner respectfully disagrees. First, the Applicant is applying an overly narrow definition to “a tubular member”. The specification does not provide a specific definition of “a tubular member” and the definition of tubular is “ having the form of or consisting of a tube” (https://www.merriam-webster.com/dictionary/tubular) thus a tubular member is a member having the form of or consisting of a tube. The definition does not include “a distinct structural passage for air which provides a specific configuration in which the airflow path may be isolated from the surrounding components and may provide a more controlled or sealed pathway.” Second, 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.
The Applicant argues that the skilled person starting from Jochnowitz would understand Jochnowitz as relying on air entry through lateral openings in the housing and subsequent passage through internal openings, rather than through a discrete tubular inlet member.
The Examiner respectfully disagrees. The claims do not state “a discrete” tubular inlet member thus this argument is not commensurate in scope with the claims.
The Applicant argues that modifying Jochnowitz to include an air inlet member comprising a tubular member would not constitute a straightforward substitution or routine design choice. The Applicant argues that Jochnowitz's air path is integrated into the housing structure and bottom openings thus incorporating a discrete tubular member would require substantial reconstruction of the airflow configuration, including redesigning the manner in which air enters the device, is routed through the housing, and interfaces with the existing structural components. The Applicant argues that such a modification would alter the structure and principle of operation of Jochnowitz, rather than merely implementing a predictable variation.
The Examiner respectfully disagrees. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this instance, making the air inlet passage of Jochnowitz a tubular member when illustrated as a channel for which air enters involves no more than a change of shape. A tubular member channel would still function in the same way to allow air to enter.
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) 1, 2, 4-9, 13, 15, 16, 22, 23 and 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over 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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Jochnowitz does not expressly teach that the air inlet member comprises 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. Making the air inlet passage a tubular member when illustrated as a channel for which air enters, involves no more than a change of shape. A tubular member channel would still function in the same way to allow air to enter.
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) (Jochnowitz, 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 (Jochnowitz, Fig. 1).
Regarding claim 15, wherein the heating element (43) at least partially surrounds the heating chamber (30) (Jochnowitz, Fig. 1).
Regarding claim 16, wherein the heating element comprises a susceptor which is heatable by penetration with a varying magnetic field (Jochnowitz, [0064]).
Regarding claim 22, wherein the aerosol provision device is a tobacco heating product (Jochnowitz, [0044]).
Regarding claim 23, Jochnowitz teaches the aerosol provision device (10) according to claim 1 (see rejection of claim 1, above); wherein the aerosol provision device (10) forms a system (1) with 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 device according to claim 23 (rejection of claim 23, above) wherein 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]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Dendy (US 20180116282 A1) teaches a connector which is part of an e-vaping device (abstract), for example a vaporizer assembly, a power supply configured to supply power to the vaporizer assembly, a male connector connected to the vaporizer assembly or the power supply and a female connector connected to the vaporizer assembly or the power supply. Dendy teaches that the connector includes air inlets in fluid communication with the vaporizer assembly ([0091]). Dendy teaches that the air inlets may be tubular and have any shape cross-section, e.g., circular, square, triangular, polygonal, etc. ([0091]). Dendy teaches that the tubular shape and appropriate angling on the tubular air inlet may provide sufficient air flow velocity and/or turbulence into the vaporizer assembly ([0091]).
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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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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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