DETAILED ACTION
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.
Claim 29 is 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 29: the term "preferably" (Ln5) renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 29: the antecedents of “a consumable” (Ln2 Ln3); “a user” (Ln2), and “each set of user-insertable supports (Ln8) are not clearly defined. Do these refer to the consumable, user, and set of user-insertable supports previously recited – or to a new consumable, a new user, and a new set of user-insertable supports?
Claim Interpretation
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”;
the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
●aerosol-generation zone claims 9, 11, 12, 13, and 15 and claim 22
●first aerosol-generation zone claims 20 and 21
●second aerosol-generation zone claims 20 and 21
●aerosol generator claims 9, 11, and 23
●engagement region claims 9, 22, and 26
●heating device claims 11 and 25 (heater)
●non-combustible aerosol provision device claims 9, 16, and 22
●heating element claims 15 and 16; and claim 21; and claim 29
●first heating element claims 21 and 28
●second heating element claims 21 and 28
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may:
amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or
present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102 – Harris Reference
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 23-25 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Harris (WO 2020/182713 A1).
With respect to the rejection under 35 U.S.C. 102(a)(2): The applied reference has a common assignment with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by:
a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A);
a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or
a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Rejection under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2): Claim 23, Harris teaches providing non-combustible aerosol provision device 100, of non-combustible aerosol provision system 1000 (pg19 Lns16-22), for generating aerosol from aerosol-generating material 72 (pg5 Lns25-28; pg19 Lns16-22), non-combustible aerosol provision device 100 comprising:
●aerosol-generation zone 110 for receiving one or more consumables 70 comprising
aerosol-generating material 72 (pg8 Lns21-32; pg19 Lns16-20; pg20 Lns13-23; pg21 Lns28-31)
●aerosol generator 200 configured to cause aerosol to be generated from one or
more consumables 70 comprising aerosol-generating material 72 in aerosol-generation zone 110 (pg5 Lns29-32; pg22 Lns27-20)
●an engagement region (comprising at least a portion of base 54) for engagement and
disengagement with at least one support (adaptor) (comprising at least arms 55 [first support], 56 [second support], and 57) for supporting one or more consumables 70 comprising aerosol-generating material 72 in aerosol-generation zone 110 wherein the supports are considered insertable supports in that such are separable-from-and-insertable-with the engagement region (Note about structural claims:
--user interchangeable-- (and –user-- and --user insertable--) modifying the supports refers to action(s) upon the supports and is/are not considered to be a structural limitation(s) of the claimed non-combustible aerosol provision device 100 and non-combustible aerosol provision system 1000)
(pg5 Lns23-34; pg18 Lns4-13; pg19 Lns3-8). The limitation in claim 23 of “differently dimensioned consumable” (and “consumable” in the product claims) refers a material (or item) acted upon and is not considered to be a structural limitation of the claimed non-combustible aerosol provision device 100 and the non-combustible aerosol provision system 1000. Other locations within reference may be included in the above recited locations (paragraphs, drawing, abstract, claims) to demonstrate further the features in the reference as claimed in the instant claims.
Claim 23, with respect to the ●aerosol generator: because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. The instant specification teaches a structure for the claimed aerosol generator – to perform the claimed function. Harris teaches a structure for the claimed aerosol generator – to perform the same claimed functions. Harris is thus considered to meet this limitation of the claim.
Claim 25, Harris teaches that aerosol generator 200 comprises, and is, a heating device (comprising at least heating element 1 and/or magnetic field generator 120) for use in heating one or more consumables 70 comprising aerosol-generating material 72 in aerosol-generation zone 110 wherein there is thermal contact between the heating device and aerosol-generating material 72 (pg8 Lns3-7; pg21 Lns28-31).
Claim 25, with respect to the claimed ●heating device: because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. The instant specification teaches a structure for the claimed heating device– to perform the claimed function. Harris teaches a structure for the claimed heating device – to perform the same claimed function. Harris is thus considered to meet this limitation of the claim.
Claim 24, Harris teaches that magnetic field generator 120 comprises a plurality of flat spiral coils (of a plurality of induction coil arrangements 1a, 1b, 1c, 1d, and 1e) of electrically-conductive material arranged sequentially and in respective planes along a longitudinal axis B-B of aerosol-generation zone 110 (pg17 Ln29 to pg18 Ln21); and/or magnetic field generator 120 comprises a plurality of flat spiral coils (of a plurality of induction coil arrangements 1a, 1b, 1c, 1d, and 1e) of electrically-conductive material arranged sequentially and in respective planes along a longitudinal axis B-B of aerosol-generation zone 110 (pg17 Ln29 to pg18 Ln21) and aerosol-generation zone 110 extends through a hole in each of the plurality of flat spiral coils (pg19 Lns28-31).
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Claim Rejections - 35 USC § 102 – Cross Reference
Claim(s) 23-25 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Cross (WO 2018/158207 A1)
Claims 23, Cross teaches providing a non-combustible aerosol provision device, of a non-combustible aerosol provision system (pg18 Lns15-20), for generating aerosol from aerosol-generating material 31 (pg18 Ln31 to pg19 Ln8), the non-combustible aerosol provision device comprising:
●an aerosol-generation zone (comprising at least portion of a cavity of main body 2) for
receiving one or more consumables 30 comprising aerosol-generating material 31 (pg18 Lns21-29)
●an aerosol generator (comprising at least actuator 10, coil 20, armature 40, arms 71,
coil 50, and a portion of each of susceptors 6) configured to cause aerosol to be generated from one or more consumables 30 comprising aerosol-generating material 31 in the aerosol-generation zone (pg20 Ln14 to pg22 Ln10)
●an engagement region (comprising at least a portion of the cavity of main body
2 – towards mouthpiece 5) for engagement and disengagement with at least one support (adaptor) (a portion of each of susceptors 6 (two) are present forming a first support and a second support: pg12 Ln24 to pg13 Ln5) for supporting one or more consumables 30 comprising aerosol-generating material 31 in the aerosol-generation zone wherein the supports are considered insertable supports in that such are separable-from-and-insertable-with the engagement (Note about structural claims: --user interchangeable-- (and –user-- and --user insertable--) modifying the supports refers to action(s) upon the supports and is/are not considered to be a structural limitation(s) of the claimed non-combustible aerosol provision device 10 and the non-combustible aerosol provision system) (pg19 Ln9 to pg20 Ln22; pg20 Ln22 to pg10).
The limitation in claim 23 of “differently dimensioned consumable” (and “consumable” in the product claims) refers a material (or item) acted upon and is not considered to be a structural limitation of the claimed non-combustible aerosol provision device 10 and the non-combustible aerosol provision system. Other locations within reference may be included in the above recited locations (paragraphs, drawing, abstract, claims) to demonstrate further the features in the reference as claimed in the instant claims.
Claim 23, with respect to the ●aerosol generator: because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. The instant specification teaches a structure for the claimed aerosol generator – to perform the claimed function. Cross teaches a structure for the claimed aerosol generator – to perform the same claimed functions. Cross is thus considered to meet this limitation of the claim.
Claim 25, Cross teaches that the aerosol generator comprises, and is, a heating device (comprising at least actuator 10, coil 20, armature 40, arms 71, coil 50, and a portion of susceptor 6) for use in heating one or more consumables 30 comprising aerosol-generating material 31 in the aerosol-generation zone wherein there is thermal contact between the heating device and aerosol-generating material 31 (see previously recited locations in Cross).
Claim 25, with respect to the claimed ●heating device: because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. The instant specification teaches a structure for the claimed heating device– to perform the claimed function. Cross teaches a structure for the claimed heating device – to perform the same claimed function. Cross is thus considered to meet this limitation of the claim.
Claim 24, Cross teaches that the magnetic field generator (comprising at least magnetic coil 20 and magnetic coil 50) comprises a plurality of spiral coils flat upon a tube (Fig3) of electrically-conductive material arranged sequentially (coils 20 [or coils 50] following coils 50 [or coils 20]) and in respective planes along a longitudinal axis of the aerosol-generation zone; and/or the magnetic field generator (comprising at least magnetic coil 20 and magnetic coil 50) comprises a plurality of spiral coils flat upon a tube (Fig3) of electrically-conductive material arranged sequentially (coils 20 [or coils 50] following coils 50 [or coils 20]) and in respective planes along a longitudinal axis of the aerosol-generation zone and the aerosol-generation zone extends through a hole in each of the plurality of spiral coils (see previously recited locations in Cross) (see Figs 1 and 3 annotated below)
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Allowable Subject Matter
Claims 9-13, 15-16, 20-22, 26-28, and 30-31 are allowed.
Claim 29 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter: claim 9, the closest prior art of record to Harris and to Cross, alone or in combination with the other prior art of record, does not teach or fairly suggest that the non-combustible aerosol provision system comprises a first user-insertable support and a second user-insertable support, wherein the first user-insertable support and second user-insertable support are interchangeably insertable in and disengageable from the non- combustible aerosol provision device by a user of the non-combustible aerosol provision system.
The following is a statement of reasons for the indication of allowable subject matter: claim 22, the closest prior art of record to Harris and to Cross, alone or in combination with the other prior art of record, does not teach or fairly suggest that the non-combustible aerosol provision device is configured for use with a first user-insertable support and a second user-insertable support, wherein the first user-insertable support and the second user-insertable support are interchangeably insertable in and disengageable from the non-combustible aerosol provision device by a user.
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Conclusion
The amendment and comments filed 7-2-26 have been entered and fully considered – the results of which are provided herein. With respect to claim 23, the limitation of “differently dimensioned consumable” (and “consumable” in the product claims) refers a material (or item) acted upon and is not considered to be a structural limitation of the claimed non-combustible aerosol provision device 100 and the non-combustible aerosol provision system 1000.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 LINDA GRAY whose telephone number is (571) 272-5778. The examiner can normally be reached Monday - Friday, 9 AM to 5:30 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Phil Tucker can be reached at (571) 272-1095. The fax phone number for the organization where 3this application or proceeding is assigned is 571-273-8300.
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/LINDA L GRAY/Primary Examiner, Art Unit 1745
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