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 .
Response to Amendment
The amendments entered on 2/17/2026 have been accepted. Claims 3-4, 10-11 are amended. There are no new or canceled claims. Claims 1-15 are pending. Applicant’s amendments to the claims have overcome the 112(b) rejections previously set forth in the non-final office action mailed 11/14/2025. Applicant’s amendments to the claims have overcome the objections previously set forth.
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 1-6, 9-10, 12, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US2020/0054074A1, of record) in view of Thorsen (US2019/0208816A1, of record).
Regarding claim 1, Liu discloses a non-combustible aerosol provision device (the device “100” comprising the atomizer and adjustable vaporizer as in Fig. 1, where the liquid is heated without burning [0003-0004]), for generating an aerosol from an aerosol-generating material in a consumable for being received by the device (It is noted that this limitation is construed as intended use of the device, as this does not explicitly affect the structure of the device. However, it is noted that the device is a vaporizer which is synonymous with devices generating aerosols, where the smoke is generated from E-liquid/consumable which the device thus generates vapor from [0003-0005]), the non-combustible aerosol provision device comprising:
a chamber for receiving the consumable (as in Figs. 9-10 for example, the device has the adjustable atomizer chamber “224” which is the chamber for receiving the consumable [0057], wherein the non-combustible device is configured to generate the aerosol from the aerosol-generating material when the consumable is received in the chamber (as stated above, the atomizer chamber receives atomizers which may have different types of smoke oils, wherein this liquid then turns to the smoke/vapor [0003-0005]),
a consumable holder for holding the consumable in the chamber which is capable of holding a plurality of differently-dimensioned consumables at a desired position in the chamber (the consumable holder is considered to comprise of the adjustable aperture “159” located at the outermost portion of the atomizer chamber, and of the adjustable chamber base “226” [see Figs. 8-12]. In this manner, the aperture “159” is able to have its opening diameter adjustable by use of the turntable “15”, which allows for different sized consumables to be clamped down by use of the turntable “15” [0058, Figs. 8-12]. The adjustable base may be adjusted with the button adapter “22” to adjust the depth of the chamber so that different lengths may be received by the chamber [0058]. The adjustable diameter aperture is considered to be a selectively engageable gripping member).
Liu does not explicitly have at least two selectively engageable gripping members which are spaced from one another in the axial direction to grip different points of the consumable. However, it is well understood in the art that additional gripping members may be added to secure the consumable positioning. Thorsen, for example, teaches an apparatus for heating smokable material, wherein the hollow chamber of the device “35” may have the consumable placed into thereof [0046]. The chamber may have oval gripping sections spaced apart longitudinally in the hollow chamber so as to separately retain an inserted consumable article in place [0047].
One of ordinary skill in the art would have found it obvious to modify the clamping mechanism of Liu so as to have multiple gripping members along the length of the chamber as suggested by Thorsen. One would have been motivated so as to retain an inserted consumable article in place. Additionally, it is noted that a “mere duplication of parts has no patentable significance unless a new and unexpected result is produced”, In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). See MPEP 2144.04 VI. B. In this case, Applicant has not provided any evidence of new or unexpected results being provided by having two selectively engageable gripping members (as opposed to one). Therefore, it would have been obvious to situate at least two of the adjustable apertures “159” of Liu throughout the length of the chamber so as to grip inserted consumables. And when there are at least two adjustable apertures of Liu, they would each necessarily be spaced apart from one another in the axial direction, and would be gripping different locations of the consumable.
Regarding claim 2, modified Liu makes obvious the non-combustible aerosol provision device wherein the gripping members are selectively engageable to grip different consumables having different diameters (as in the rejection of claim 1 above, the adjustable aperture “159” may have its diameter adjustable by the use of the turntable “15” [0058, Figs. 8-12], wherein Liu specifically states that multiple diameter sizes of consumables may be utilized [0070]).
Regarding claim 3, modified Liu makes obvious the non-combustible aerosol provision device wherein the gripping members are configured to engage to grip the consumable in response to an actuator on the device (the turntable of Liu “15”, which manually adjusts the diameter of the adjustable aperture “159” to clamp down on the differently sized consumables, is considered to be the actuator).
Regarding claim 4, modified Liu makes obvious the non-combustible aerosol provision device wherein the actuator is configured to be move relative to the chamber of the device to cause first and second gripping members to grip the consumable (as in the rejections above, the turntable “15” moves in a circular manner [see Figs. 8-12, 0047], such that it would clearly move relative to the chamber of the device, and the movement of the turntable is what causes the constriction of the diameter of the aperture “159” (the gripping members) onto the consumable).
Regarding claim 5, modified Liu makes obvious the non-combustible aerosol provision device wherein each of the gripping members comprises an annular gripping member having a central aperture for receiving a portion of the consumable (in Liu, as in Figs. 8-12, the adjustable aperture “159” is considered to be the gripping member. The center of this would be the central aperture where the consumable is placed into), and a diameter of each central aperture is adjustable by a user to cause the annular gripping member to engage a portion of the consumable (as in Figs. 8-12, the central apertures would be adjustable by the turntable “15” which changes the diameter of the aperture and constricts on the consumable as inserted).
Regarding claim 6, Liu suggests that each of the annular gripping members comprises a ring and a plurality of gripping arms projecting from the rings (the ring may considered to be the circular opening upon which the diameter plates “13” are formed. The diameter plates “13” may be considered to be the plurality of gripping arms, as there are several of these formed where they each come into contact with the consumable [see Figs. 8-12]), the gripping arms being moveable in a radial direction of the ring to adjust the diameter and grip the consumable (as in Figs. 8-12, the gripping arms which may be considered the plates “13” would clearly move in the radial direction, as it is necessary to move in this direction so as to have the aperture opening expand/constrict as required by the invention. And as in Figs. 8-12, this would also clearly lead to the arms gripping the consumable by the restriction of the diameter when moved [0044-0049]).
Regarding claim 9, modified Liu makes obvious the non-combustible aerosol provision device wherein the consumable holder comprises a frame which is moveable relative to the gripping members by a user to cause the selectively engageable gripping members to engage the consumable (as in the rejection of claim 1 above, Liu comprises the adjustable apertures “159” which constricts and engages the consumable through the movement of the turntable “15”. Under the broadest reasonable interpretation of the claim language, the frame may be considered to comprise either a part of or all of the turntable “15”, such that the frame/turntable would thus clearly move relative to the gripping members (the portions “13” around the adjustable aperture), and this movement of the frame/turntable is what would result in the clamping onto the inserted consumable).
Regarding claim 10, modified Liu makes obvious the non-combustible aerosol provision device wherein the consumable holder comprises a frame which is moveable relative to the gripping members by a user to cause the selectively engageable gripping members to engage the consumable (as in the rejection of claim 1 above, Liu comprises the adjustable apertures “159” which constricts and engages the consumable through the movement of the turntable “15”. Under the broadest reasonable interpretation of the claim language, the frame may be considered to comprise either a part of or all of the turntable “15”, such that the frame/turntable would thus clearly move relative to the gripping members (the portions “13” around the adjustable aperture), and this movement of the frame/turntable is what would result in the clamping onto the inserted consumable),
and the frame is moveable, relative to the annular gripping members, to cause constriction of the annular gripping members to adjust the respective diameters of the central apertures of the annular gripping members and cause gripping of the consumable (similar to as above, Liu comprises the adjustable apertures “159” which through the movement of the turntable causes the aperture to adjust in size through the movement of the plates “13” [see Fig. 12]. Under the broadest reasonable interpretation of the claim language, the frame may be considered to comprise either a part of or all of the turntable “15”, such that the frame/turntable would thus clearly move relative to each of the annular gripping members and this movement of the frame/turntable is what would result in the clamping onto the inserted consumable),
Regarding claim 12, modified Liu makes obvious the non-combustible aerosol provision device wherein the consumable holder is configured to hold consumables with different lengths and or diameters (In Liu, the aperture “159” is able to have its opening diameter adjustable by use of the turntable “15”, which allows for different sized consumables to be clamped down by use of the turntable “15” [0058, Figs. 8-12]. The adjustable base may be adjusted with the button adapter “22” to adjust the depth of the chamber so that different lengths may be received by the chamber [0058]).
Regarding claim 13, Liu states that its invention is an alternative to normal “cigarettes”, as it is an “e-cigarette” which is used to simulate the feel of smoking without affecting health [0003-0005]. Liu’s device describes the heating of a liquid so as to produce a “smoke oil”, but Liu does not explicitly state that its device is for tobacco. However, it is extremely common within the art for such devices to be used with tobacco. Thorsen, for example, states that because tobacco creates smoke while burning, alternatives have been made which release tobacco by heating and not by burning the material [0002]. This type of process (heating and not combusting the tobacco leaves) is the basis behind the technology of vapes and electronic cigarettes. One of ordinary skill in the art would have found it obvious to use tobacco as suggested by Thorsen in the device of Liu. One would have been motivated because Tobacco is an extremely common material for vapes/e-cigarettes, and because the heating of tobacco produces less harmful chemicals than does the combustion thereof. And additionally, case law holds that the selection of a known material based on suitability for its intended use support prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045)". See MPEP 2144.07.
Regarding claim 14, modified Liu makes obvious the non-combustible aerosol provision device of claim 1 (see the rejection of claim 1 above), and at least one consumable comprising aerosol-generating material (the consumable/atomizer of liquid, etc., would be placed into the aperture of Fig. 12-13, [0003-0005]), the consumable being configured to be received by the non-combustible aerosol provision device and held by the consumable holder to allow the device to generate aerosol from the material (as above, the adjustable atomizer chamber would take in the consumable/atomizer, and the system which is a vaporizer would necessarily generate vapor/aerosol from said material).
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US2020/0054074A1, of record) in view of Thorsen (US2019/0208816A1, of record), as applied to claim 1 above, and further in view of Wu (WO2020201531A1, of record, citing to English Equivalent US2022/0167681A1).
Regarding claims 7 and 8, Liu does not explicitly have the gripping arms biased in the radial direction away from the central aperture or with an inwardly turned portion at a free end of the arm to engage/grip the consumable. However, these types of gripping arms are well known within the art of vapes. Wu teaches an aerosol generating apparatus, wherein Fig. 6-8 provide a view of an opening “20” wherein the consumable article “21” is inserted into the apparatus. At this opening is provided a collar “33” which has a plurality of legs “59” formed thereon. The legs are arranged equally spaced around the collar, where the legs extend in the Y-direction and have tips “59a” which extend in a direction towards the expansion element “35” such that the tips are angled away from each other [0098]. The legs provide a gripping section that grips the consumable article in order to correctly position and retain the portion of the consumable article within the chamber, such that the legs compress/pinch the consumable article [0098]. As in Figs. 6-8 of Wu, the legs are clearly at least partially biased in the radial direction away from the central aperture “20”, and have an inwardly turned portion at the free end of the arm which engages the consumable within the chamber.
One of ordinary skill in the art would have found it obvious to modify the gripping arms of Liu to have arms as suggested by Wu. One would have been motivated so as to provide a gripping section that grips the consumable in a correct position and to retain the consumable at that position in the chamber [0098]. It is considered that the changing of the gripping members of Liu to those of Wu would have been simple substitution of one known element for another to obtain predictable results. Because Wu suggests a known element of the legs “59” which compress/pinch the consumable article so as to keep it in the correct position [0098], it would have been a simple substitution to put these known gripping legs in the invention of Wu, which would result in the predictable results of having a satisfactory clamping/gripping mechanism for keeping differently sized consumables in place. “Express suggestion to substitute one equivalent for another need not be present to render such substitution obvious.” See MPEP2143 I. B.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Liu (US2020/0054074A1, of record) in view of Thorsen (US2019/0208816A1, of record).
Regarding claim 15, Liu discloses a consumable holder (the consumable holder is considered to be the atomizer chamber of the device, which comprises of the adjustable aperture “159” located at the outermost portion of the atomizer chamber, and of the adjustable chamber base “226” [see Figs. 8-12]), for holding a consumable (it is noted that this limitation is construed as intended use as it imparts no structural limitations onto the consumable holder. However, Liu’s holder would be for a consumable [0003-0005]), comprising aerosol-generating material in a chamber of a non-combustible aerosol provision device (the device “100” comprising the atomizer and adjustable vaporizer as in Fig. 1, where the liquid is heated without burning [0003-0004]) for the non-combustible aerosol provision device to generate an aerosol (it is noted that this limitation is construed as intended use of the device, as this does not explicitly affect the structure of the device. However, it is noted that the device is a vaporizer which is synonymous with devices generating aerosols, where the smoke is generated from E-liquid/consumable which the device thus generates vapor from [0003-0005]),
a consumable holder for holding the consumable in the chamber which is capable of holding a plurality of differently-dimensioned consumables at a desired position in the chamber (the consumable holder is considered to comprise of the adjustable aperture “159” located at the outermost portion of the atomizer chamber, and of the adjustable chamber base “226” [see Figs. 8-12]. In this manner, the aperture “159” is able to have its opening diameter adjustable by use of the turntable “15”, which allows for different sized consumables to be clamped down by use of the turntable “15” [0058, Figs. 8-12]. The adjustable base may be adjusted with the button adapter “22” to adjust the depth of the chamber so that different lengths may be received by the chamber [0058]. The adjustable diameter aperture is considered to be a selectively engageable gripping member).
Liu does not explicitly have at least two selectively engageable gripping members which are spaced from one another in the axial direction to grip different points of the consumable. However, it is well understood in the art that additional gripping members may be added to secure the consumable positioning. Thorsen, for example, teaches an apparatus for heating smokable material, wherein the hollow chamber of the device “35” may have the consumable placed into thereof [0046]. The chamber may have oval gripping sections spaced apart longitudinally in the hollow chamber so as to separately retain an inserted consumable article in place [0047].
One of ordinary skill in the art would have found it obvious to modify the clamping mechanism of Liu so as to have multiple gripping members along the length of the chamber as suggested by Thorsen. One would have been motivated so as to retain an inserted consumable article in place. Additionally, it is noted that a “mere duplication of parts has no patentable significance unless a new and unexpected result is produced”, In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). See MPEP 2144.04 VI. B. In this case, Applicant has not provided any evidence of new or unexpected results being provided by having two selectively engageable gripping members (as opposed to one). Therefore, it would have been obvious to situate at least two of the adjustable apertures “159” of Liu throughout the length of the chamber so as to grip inserted consumables. And when there are at least two adjustable apertures of Liu, they would each necessarily be spaced apart from one another in the axial direction, and would be gripping different locations of the consumable.
Response to Arguments
Applicant’s arguments filed 2/17/2026 have been fully considered but they are not persuasive.
Applicant argues that the cited combination does not suggest “selectively engageable gripping members”.
The Examiner respectfully disagrees. It is noted that under the broadest reasonable interpretation of the claim, the term “selectively engageable gripping members” means members which are able to be engaged to grip the device. As Thorsen’s members may engage an article when an article is inserted into it, it would reasonably be considered to be a “selectively engageable gripping member”, as the members are choosing to be engaged by the action of the insertion of the article into the chamber so as to activate the gripping members to grip the device. It appears that the precise features Applicant is arguing are not recited in the rejected claims in the manner they are arguing. 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). As such, Applicant’s arguments are not found convincing.
Additionally, 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). Applicant attacks the reference of Thorsen individually, wherein the rejection is based upon Liu in view of Thorsen. As noted in the rejections of record, Liu teaches an adjustable aperture which may be adjusted so as to grip onto the consumable device [see Figs. 8-12], such that this would undoubtedly be considered a selectively engageable as the device is manually adjusted to set the size of the aperture. And wherein Liu is modified by Thorsen to include gripping members along a longitudinal length thereof to have a resilient gripping section, it would have been obvious to the person of ordinary skill in the art to have a device where the gripping members of Thorsen were present in the device and adjustable per the adjusting mechanism of Liu so as to have gripping along the length of Liu. Applicant does not refer to the combination of references of Liu with Thorsen in their cited Remarks in any way, as all arguments are instead only tied to the secondary reference of Thorsen. For at least these reasons laid out, Applicant’s arguments are found unconvincing.
Allowable Subject Matter
Claim 11 is 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.
The following is a statement of reasons for the indication of allowable subject matter:
The prior art does not disclose nor render obvious all of the cumulative limitations of dependent claim 11, such the consumable holder for holding the consumable in the chamber, wherein the consumable holder comprises at least two selectively engageable gripping members which are spaced from one another in an axial direction of the chamber to grip different respective points on the consumable, such that the consumable holder is capable of holding, by use of the selectively engageable gripping members, one at a time, each of a plurality of differently-dimensioned consumables at a desired position in the chamber, wherein each of the selectively engageable gripping members comprises an annular gripping member having a central aperture for receiving a portion of the consumable, and wherein a diameter of each central aperture is adjustable by a user to cause the annular gripping member to engage a portion of the consumable received in the central aperture to hold the consumable, the consumable holder comprises a frame which is moveable, relative to the selectively engageable gripping members, by a user to cause the selectively engageable gripping members to engage the consumable; and the frame is moveable, relative to the annular gripping members, to cause constriction of the annular gripping members to adjust the respective diameters of the respective central apertures of the annular gripping members and cause gripping of the consumable, and wherein the frame comprises a plurality of annular constriction members, each annular constriction member of the plurality of annular constriction members being mounted to move, when the frame is moved by a user, to constrict an annular gripping member of the plurality of annular gripping members and cause gripping of the consumable.
Liu (US2020/0054074A1) discloses a non-combustible aerosol provision device which has an adjustable aperture which may expand or constrict based upon movement of a turntable, such that a wide variety of different diameter consumables may be placed inside. There is also an adjustable base chamber which may be adjusted for a variety of different lengths of consumables.
Thorsen (US2019/0208816A1) discloses an apparatus for heating smokable material, wherein a hollow chamber of the device may have the consumable placed into it. The chamber may have oval gripping sections spaced apart longitudinally in the hollow chamber so as to separately retain an inserted consumable article in place, thereby suggesting for multiple gripping members to be placed along the length of the consumable.
Wu (WO2020201531A1) teaches an aerosol generating apparatus, wherein the consumable article is inserted into the apparatus. A plurality of legs are formed which extend in the Y direction and which have tips which are angled away from each other, which provide for a gripping section that grips the consumable article and compresses/pinches it.
Doyle (US2020/0268047A1) teaches an aerosol-generating device, where at the opening end of the chamber there are a variety of different holding members utilized to lock the consumable into place (where the consumable may have different diameter sizes).
However, the prior art does not suggest the totality of limitations of dependent claim 11, such that the frame comprises the plurality of annular constriction members which are mounted to move, such that when the frame moves it constricts each annular gripping member of the plurality of annular gripping members to cause gripping of the consumable.
Conclusion
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.
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/T.F.S./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749