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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 6/2/2026 has been entered.
Response to Amendment
The amendments entered on 6/2/2026 have been accepted. Claims 1, 4, 6, 11 are amended. Claims 1-2, 4-15, 17-19 are pending. Applicant’s amendments to the claims have overcome the 112(d) rejections previously set forth in the final office action mailed 4/3/2026.
It is noted that the Examiner proposed an Examiner’s amendment to move claim 2 into claim 1 and other minor amendments so as to put the claims into a state of allowability, but Applicant informed on 9/20 that this proposal would not be accepted at this time. The Examiner notes that he is available for interviews to further discuss this matter if needed.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 6-9 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 6 requires for the aerosol condensate to be “adsorbed by the capillary channel”. The capillary channel is lacking antecedent basis, such that it isn’t clear what the capillary channel is nor how it is related to the protruding structure and flow guide groove. Applicant is asked to amend and clarify without the addition of new matter. Claims 7-9 are rejected for relying upon a rejected claim. Claim 6 will be examined as if claim 6 contains all of the limitations of claim 2 which details the capillary channel.
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.
Claims 1 and 10-15 are rejected under 35 U.S.C. 103 as being unpatentable over Lei (CN111657547A, of record) in view of Zhang (WO2020259692A1, of record), and optionally in view of Yi (CN110638102A, of record).
Regarding claim 1, Lei teaches a vaporizer (atomizing device “10”, Fig. 1), configured to vaporize a liquid substrate to generate an aerosol (the device is configured with an atomizing assembly so as to generate an aerosol from a liquid substrate [pg. 4 of machine translation]), and comprising an outer housing provided with at least one inhalation opening (as in Figs. 2 and 6, the outer housing is considered to be the outer portions of the body of the atomizing device. The air inlet of the vaporizer is “11” located at the bottom of the figures), the outer housing being internally provided with:
a liquid storage cavity configured to store a liquid substrate (the liquid substrate may be tobacco oil, liquid medicine, etc. [pg. 4 of machine translation]).
Lei does not specifically label the liquid storage cavities nor show the path of travel of the liquid substrate from the cavity to the vaporization assembly. However, as Lei contains liquid substrate to atomize said liquid into aerosol [see pg. 4 of machine translation], it would be obvious for Lei to have a liquid storage cavity so as to hold the liquid which transfers to the atomizing assembly. Zhang, for example, teaches an electronic cigarette atomizer [title], where liquid storage cavities “30” for storing e-liquid are provided inside of the outer housing at locations “30a” and “30b” as in Fig. 9, such that they are provided on both sides of the vapor outlet pipe. As in Fig. 5, the liquid follows the arrows R1 from the liquid storage cavity to the atomization surface to be atomized [pg. 8 of machine translation]. One of ordinary skill in the art before the effective filing date of the invention would have found it obvious to modify the vaporizer of Lei so as to have the liquid storage cavities and path of travel as suggested by Zhang. One would have been motivated so as to provide ample storage for the liquid substrate taught by Lei and to provide a pathway to the vaporization assembly [pg. 8 of machine translation], such that the vaporizer of Lei may be practically used in real applications.
Modified Lei further suggests a vaporization assembly in fluid communication with the liquid storage cavity so as to draw the liquid substrate (as above, Lei in view of Zhang suggests the liquid cavities located at both sides of the vapor outlet pipe as in Figs. 2 and 6, and the liquid would follow a path downwards in these figures towards the atomization assembly “14” so that the liquid may be made to an aerosol),
A holder which at least partially accommodates or holds the vaporization assembly (the surrounding structure as in Fig. 2/6 is considered to form the holder around the atomization assembly “14” and would clearly at least partially accommodate it),
A vapor outlet pipe which provides an airflow path to an inhalation opening and an air inlet end connected to the holder (see Figs. 2 and 6, wherein the air outlet passage “18” extends inwards from the atomization assembly/holder upwards to the outer portion of the device, where this outer portion is the air outlet “12” which is where the aerosol is released),
A protruding structure provided on the holder, wherein a first notch located at the air inlet end is provided in the vapor output pipe and the protruding structure at least partially extends into the first notch and fits it so as to guide condensate generated in the vapor output pipe out of the vapor output pipe through the air inlet end (the walls from the atomizing chamber to the air outlet passage “18” inner wall part is provided with a first capillary liquid absorbing structure “15”, for absorbing condensate along the air outlet passage so as to reuse the condensation on the air outlet passage [Figs. 2, 6, pg. 6 of machine translation]. And as in Fig. 6, this may include both first capillary groove “151” and second capillary groove “152”. And further, as in Figs. 2 and 6, the vaporizer is provided with the second capillary liquid absorbing structure “181” which extends up from the atomizing chamfer to the air outlet passage to guide condensed aerosol substrate towards the atomizing chamber [pg. 6 of machine translation]. Therefore, it is considered that the claimed protruding structure would be any of the capillary structures, which would necessarily be at least partially on the holder, would extend up to the air inlet pipe, and the capillary structures as defined would result in the condensate being guided down away from the pipe “18” and thus down in the direction of the air inlet end “11”. It being noted that the “protruding structure” is given its broadest reasonable interpretation in light of the specification, wherein the specification does not explicitly define what is considered to be the protruding structure, as each of the identified structures extend in a longitudinal direction of the outer housing and would at least partially extend/fit the first notch under the broadest reasonable interpretation thereof. And similarly, where “holder” means a portion which at least partially accommodates/holds the vaporization assembly, it would reasonably be considered that these structures as above would be considered as at least partially located on a holder under the broadest reasonable interpretation thereof. And additionally/alternatively, 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. Whereas Lei clearly suggests the use of these protruding portions that extend into the notch, one would have found it obvious to situate these portions to guide condensate anywhere around the inner surfaces of the device as additional means to guide condensate as this would have been an obvious matter of design choice which would not result in unique modification of the device. Regarding the claimed notches, as in Figs. 2 and 6, the vapor outlet pipe “18” is clearly provided with “notches” in said pipe. See the top portions of Figs. 2 and 6 near “12”, where the pipe clearly has multiple segmented portions around the circumference of the pipe. An annotated Fig. 6 is provided below with arrows identifying the multiple notches in the pipe segments. It being noted that “notch” is treated under the broadest reasonable interpretation, as the specification does not specifically define what is meant by notch and thus the term is given its broadest meaning in light of the specification. Therefore, it may be considered that the vapor output pipe possesses several notches that run from a vapor inlet end upward, and as the protruding structure “15” and/or “181” clearly extends up to the vapor output pipe [see Figs. 2 and 6, and pg. 6 of machine translation detailing this aspect], it would reasonably be considered that the protruding structure would therefore be at least partially extended into the notch and “fit” the notch (taken broadly to mean present in or around the notch) because the protrusions extend into the region of the pipe where the notches are clearly present).
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Wherein the air inlet end has an end surface in a longitudinal direction of the outer housing, where the first notch at the air inlet end is recessed from the end surface in the longitudinal direction (the air inlet end would be the lower end of the pipe as in Figs. 2 and 6 of Lei. As there are recessed portions in the vapor output pipe which have no presence of material, it may be considered that the notch is recessed in the longitudinal direction from the air inlet end surface in the longitudinal direction thereof, for each of the potential notch portions as defined above. As this notch portion clearly extends in a longitudinal direction of the housing and clearly is recessed from the inner end of the vapor pipe, it would thus also be reasonable to consider that the notch is recessed from the end surface thereof, such that Lei satisfies the broadest reasonable interpretation of the claim).
Optionally applied, Yi teaches an atomizer for generating an aerosol, wherein outlets “1221” are provided on the end surface of the first end “1211” of the air outlet channel “121” [Figs. 4, 6]. From Fig. 6 which provides a view of the air inlet, it is clear that this surface is provided with a plurality of notches which extend around the circumference of the opening, and where the notches extend along the longitudinal length of the outlet channel. The notches clearly extend from an air inlet end of the vapor output put (which is the left side of Fig. 6 of the pipe “12”). The notches clearly extend along the longitudinal direction thereof, such that the notches would be considered to be recessed in the longitudinal direction. One of ordinary skill in the art before the effective filing date of the invention would have found it obvious to include this structure (including the notches) as suggested by Yi, and one would have been motivated so as to prevent liquid from being sucked into the users mouth [pg. 5 of machine translation]. With such an arrangement, the capillary structures of Lei would be extending at least partially into the plurality of notch portions of Yi (because they extend up into the air outlet pipe).
Regarding claim 10, modified Lei makes obvious a vaporizer wherein the holder at least partially delimits a vaporization cavity which surrounds thereof (as in Figs. 2 and 6, the atomizing cavity “13” is clearly delimited and surrounded by the surrounding holding structure around the cavity “13”. See specifically Fig. 6 which provides the best view oof the surrounding holder around the cavity), and the protruding structure is at least partially located within the vaporization cavity to guide the aerosol condensate towards the vaporization cavity (as in the rejection of claim 1 above, the protruding structure may be considered to be the capillary structures “151” and “152”, which as in Fig. 6 clearly extend at least partially in the vaporization cavity and guides condensed aerosol substrate towards the atomizing chamber [pg. 6 of machine translation]).
Regarding claim 11, modified Lei makes obvious a vaporizer wherein the air inlet end of the vapor output pipe has a width direction and thickness direction where the size of the pipe is greater in the width direction (the vaporizer device is shown in Fig. 1, where the outlet of the vapor outlet pipe is clearly seen in an elliptical shape at the outer top portion of the device. The width direction may be defined as the wider component, extending from the top left to bottom right of the device, while the thickness would be the perpendicular direction which extends from the top right to the bottom left. With the dimensions defined as such, and as the pipe outlet is shown to have an elliptical shape, it is clear that the pipe would have a greater “size” in this width direction than in the thickness direction), and the first notch is located on at least one side of the pipe in the thickness direction as there are clearly “notches” located on the pipe in Figs. 2 and 6 located around the extent of the pipe, within the broadest reasonable interpretation given to the limitation of said notch, it would reasonably be considered that at least a notch would be located on the pipe in the thickness direction. It being noted that any notch would necessarily have a portion located in the “thickness” direction as the notch would have a least a portion of which exists in said direction).
Regarding claim 12, modified Lei makes obvious a vaporizer wherein the vapor output pipe has a cross-section that is substantially elliptical (as in Fig. 1 which shows the outer end of the vapor output pipe, the cross-section is clearly in an elliptical shape).
Regarding claim 13, modified Lei makes obvious a vaporizer wherein the air inlet end of the vapor output pipe is further provided with a second notch which is on at least one side of the pipe in the width direction (there are a number of notches located around the extent of the vapor outlet pipe on the air inlet side [see Figs. 2 and 6]. It being noted that under the broadest reasonable interpretation of the claim, any notch would necessarily have a portion located in the “width” direction as the notch would have at least a portion of which that exists in said direction. So as there are clearly at least 2 notches in Figs. 2 and 6, the notches may be considered to be a first and a second which are in the thickness and width directions).
Regarding claim 14, modified Lei makes obvious a vaporizer wherein a width of the first notch is greater than the width of the second notch (as defined above, the notches would be present on the vapor outlet pipe. Because the vapor output pipe has an elliptical shape [see Fig. 1 outlet for example], the widths would necessarily be different from each other, such that it would be considered that the wider notch would be considered the first notch. And it has been 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 Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984) cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)). See MPEP 2144.04 (IV). Applicant has not demonstrated any benefits from having relative widths of the first notch greater than the second notch would yield any improved results or different results from that of the prior art).
Regarding claim 15, modified Lei makes obvious the vaporizer of claim 1 (see the rejection of claim 1 above), and suggests the electronic vaporization device with a power supply mechanism which powers the vaporization device (Lei clearly suggests the vaporizer which vaporizes the liquid substrate to generate an aerosol, and as Lei is tied to atomizers for electronic cigarettes [pg. 1 of machine translation], a person of ordinary skill in the art would readily consider that the vaporizer/electronic cigarette taught by Lei would be utilized with a power supply mechanism so as to power said electronic cigarette (so as to provide the working electronic vaporization device). Lei does not specifically state that a power supply mechanism is provided in its electronic cigarette to supply power to the device, but this is extremely well known and ubiquitous within the art. Zhang, for example, teaches a vaporizer which includes a power supply device for powering the atomizing device [pg. 4, 6 of machine translation]. One of ordinary skill in the art would have found it obvious to include a power supply device as suggested by Zhang, and one would have been motivated so as to provide power to the atomizing device allowing for the atomizer to function).
Response to Arguments
Applicant’s arguments have been considered but they are not persuasive.
Applicant argues on pgs. 7-8 of their filed Remarks dated 6/2/2026 that Yi and Zhang do not teach the new limitations regarding the notch being recessed in the longitudinal direction.
The Examiner respectfully disagrees. While Yi/Zhang may show the notch recessed in a radial direction, the notch also clearly extends along a longitudinal direction such that it would be reasonably considered that the notch also is recessed in the longitudinal direction. The notch being recessed in the radial direction does not prevent the notch from being recessed in the longitudinal direction also as claimed. And further Applicant does not specifically define “notch” in their written specification so as to give the notch any additional meaning beyond its conventional meaning of a “cut-out’ of some sort from the pipe. See the rejections above for details.
Applicant argues on pg. 8 that the invention claims a manner of guiding an aerosol condensate through the air inlet because of a capillary channel formed between the protruding structure and the vapor output pipe.
The Examiner respectfully disagrees. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The independent claim does not require for there to be formed a capillary channel in the manner Applicant is arguing, as claim 1 does not in any way recite the formation of a capillary channel. This limitation is only required in dependent claim 2 and not in claim 1. If Applicant wishes to claim a capillary channel which is formed between the protruding structure and the notch, these limitations must be added to the independent claim.
Applicant argues on pg. 8 that Lei and Yi do not anticipate the notch.
It is noted that the rejection in question is not an anticipation rejection (102) but rather that it is an obviousness rejection (103) such that the references may individually or together reasonably suggest the combination of claimed elements. Applicant does not specifically address the rejections and what are considered to be the notches/protruding structures in their response. Merely arguing that Lei/Yi/Zhang do not teach aspects is insufficient without addressing the specific rationale that has been laid out for those limitations. And in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Additionally, Applicant’s arguments are not sufficient to show teaching away. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or non-preferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). See MPEP 2123. To constitute a teaching away, the prior art would need to criticize, discredit, or otherwise discourage the solution claimed, see MPEP 2143.01. Applicant does not cite to any specific portion of Lei or Yi to show this alleged teaching away in either reference, and these arguments appear to be solely the matter of opinion and not of evidence. These opinions about the prior art are not sufficient to overcome the prima facie case of obviousness.
Allowable Subject Matter
Claims 2, 4-9, 17-19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Specifically, it is noted that the limitations of claim 2 combined with the independent claim are considered to overcome the prior art of record, wherein dependent claims 6-9 are examined as if they contain the limitations of claim 2 as a result of the 112(b) rejection as detailed above.
The following is a statement of reasons for the indication of allowable subject matter:
The combination of limitations of claim 1 with claim 2 overcomes the prior art of record, specifically a vaporizer which has: “a vapor output pipe, which provides an airflow path for outputting the aerosol to the at least one inhalation opening, the vapor output pipe being provided with an air inlet end, which is connected to the holder in a fit manner, wherein, the air inlet end has an end surface in a longitudinal direction of the outer housing, and a first notch located at the air inlet end is recessed from the end surface in the longitudinal direction of the outer housing; a protruding structure being provided on the holder, wherein the protruding structure extends in the longitudinal direction of the outer housing and at least partially extends into the first notch and fits the first notch, so as to guide an aerosol condensate which is generated in the vapor output pipe out of the vapor output pipe through the air inlet end, and wherein there is no contact but a gap kept between at least a part of the protruding structure and the vapor output pipe, such that the gap delimits and forms a capillary channel”.
It is considered that the prior art, taken as a whole, does not suggest the totality of limitations present in claim 2. While Lei/Yi disclose having a notch and protruding capillary structure respectively, they don’t reasonably suggest the combination of limitations that would be present, such that there is a protruding structure that extends into and fits the notch, and there is only a gap between the protruding structure and the vapor output pipe which forms the capillary channel which guides the aerosol condensate out of the vapor output pipe. There is no rationale within Lei/Yi so as to modify the structure to be in the exact manner as claimed in claim 2, for the protruding portion to extend into the notch and to have gaps around it to act as a capillary channel where the gaps are the only contact. As such, the combination of limitations is considered to distinguish over Lei/Yi.
Conclusion
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/T.F.S./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
