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 .
Election/Restrictions
Claims 9-12, 14, 17-18, 20-21 and 23-24 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 02/18/2026.
Applicant’s election without traverse of Group I in the reply filed on 02/18/2026 is acknowledged.
Status of Claims
Claims 1-7, 9-12, 14-18, 20-21, 23-24, and 26-28 are pending. Claims 8, 13, 19, 22, and 25 are cancelled. Claims 9-12, 14, 17-18, 20-21 and 23-24 are withdrawn. Claims 1-7, 15-16, 26-28 are ready for examination.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: 302, 318c-d, 320b, 402, and 610a. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 300a, 600a, 704a, and 704b. Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 1 is objected to because of the following informalities: Line 1 of claim 1 recites “an aerosol”. Line 4 recites “an aerosol”. Because this limitation is previously recited, the recitation in line 4 should be “the aerosol”. Appropriate correction is required.
Claim 6, line 2, recites “wherein the tube comprises a second portion, wherein the second portion is configured to form a portion of the tube between the opposing longitudinal edges”. The label “a second portion” is objected to because no first portion has been introduced in the claims. It is clear that “the second portion” is a gap portion configured to form a portion of the tube between the opposing longitudinal edges when the opposing longitudinal edges of the sheet of material are not overlapping one another.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
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:
(A) 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;
(B) 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”; and
(C) 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:
an adjustment mechanism in claims 1-3, 7, 15-16, and 26-28, (26 and 28 comprising the adjustment mechanism by virtue of their dependency on claim 1); and
a biasing element in claim 15.
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 specification is particularly broad and describes many structures that may be part of an adjustment mechanism. At least the following structures form an adjustment mechanism:
An adjustment mechanism comprising a sheet, where the sheet forms at least part of a tube, rolled into a cylinder with overlapping longitudinal edges or part of cylinder without overlapping longitudinal edges, and where the relative circumferential position of the longitudinal edges move to widen or narrow the diameter of the tube, ([pg 1-2 lines 31-12]);
An adjustment mechanism comprising a braided tube, where the braided tube can be compressed to shorten the tube, having the effect of widening the diameter of the tube, or stretched, having the effect of narrowing the diameter of the tube, ([pg 2-3 lines 29-6]); and,
An adjustment mechanism comprising a helically wound strip formed into a tube, where the helically wound strip can be stretched to lengthen the tube, having the effect of narrowing the diameter of the tube, or compressed having the effect of widening the diameter of the tube, ([pg 2-3 lines 29-7]).
At least the following structure is considered a biasing element:
A biasing element where the heating tube is biased in such a way that it tends to constrict itself towards a first configuration having a smaller diameter, ([pg 23 lines 11-12]).
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: (1) 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 (2) 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
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-7, 16, 26, and 28 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Li et al. (CN 110558624A) (English Machine Translation relied upon).
Regarding claims 1, Li discloses:
A non-combustible aerosol provision device for generating an aerosol from an aerosol-generating material, the non-combustible aerosol provision device,([0007] disclosing a cigarette heating device). comprising:
a chamber for receiving a consumable comprising aerosol generating material to enable the noncombustible aerosol provision device to generate the aerosol from the aerosol generating material, [0009] disclosing a cavity (receiving cavity) for accommodating a cigarette, where the size of the cavity is configured to change in a controlled manner), and an adjustment mechanism to allow a user to adjust a dimension of the chamber, ([0010] a fastener disposed around a sheet formed into a tubular heater that is configured to compress the heater in response to heat, driving the heater to adjust the cavity for receiving cigarettes), to allow the chamber to accommodate, one at a time, each of a plurality of consumables having different sizes, ([0007] the purpose of the fastener and heater configuration is to allow the cavity to adapt to cigarettes of different sizes, automatically clamping to the various cigarettes and thereby improving the heating effect).
Regarding claim 2, Li discloses the non-combustible aerosol provision device according to claim 1. Li further discloses the heater forms a tube, where the interior of the tube defines the chamber, and wherein the adjustment mechanism allows adjustment of a dimension of the tube to thereby adjust the dimension of the chamber, ([0056]-0057] Fig 3-4 depicting two embodiments where a sheet is formed into a tubular heater and the tubular heater and fastener allows adjustment of the diameter of the chamber formed by the heater, because the fastener is formed of a shape memory alloy that is configured to be heated, and configured to deform upon heating, to reduce the space of the chamber, to clamp different sizes of cigarettes, and improve heating efficiency, ([0050]).
Regarding claim 3, Li discloses the non-combustible aerosol provision device according to claim 2. Li discloses two embodiments where a sheet of material is arranged to form a heater in the form of a tube, both heaters comprising two respective opposing longitudinal edges, and wherein the adjustment mechanism allows a position of the opposing longitudinal edges of the sheet of material to be adjusted to adjust a diameter of the tube, ([0056]-0057] Fig 3-4 depicting two embodiments where a sheet is formed into a tubular heater and the tubular heater and fastener allows adjustment of the diameter of the chamber formed by the heater, because the fastener is formed of a shape memory alloy that is configured to be heated, and configured to deform upon heating, to reduce the space of the chamber, to clamp different sizes of cigarettes, and improve heating efficiency, ([0050]).
Regarding claim 4, Li discloses the non-combustible aerosol provision device according to claim 3. Li discloses an embodiment where the opposing longitudinal edges of the sheet of material are configured, in at least some configurations in use, to overlap one another, and wherein the adjustment mechanism allows a degree of overlap of the opposing longitudinal edges to be adjusted to adjust the diameter of the tube, ([0057] Fig 4, depicting tubular heater formed from a sheet wound into a tube having opposing longitudinal overlapping edges, where the tube surrounds a cavity meant to accommodate different sized cigarettes, and where fasteners surrounding the tube compress the tube, inherently adjusting the degree of overlap, to adjust the diameter of the tube).
Regarding claim 5, Li discloses the non-combustible aerosol provision device according to claim 3. Li discloses an embodiment where the opposing longitudinal edges of the sheet of material are configured such that in at least some configurations the opposing longitudinal edges do not overlap one another, and wherein a distance between the opposing longitudinal edges with respect to a circumferential direction of the tube is adjustable by the adjustment mechanism, ([0056] Fig 3 depicting sheet material formed into a tubular heater with a cavity in the center, the tubular heater having at least a longitudinal gap separating two opposing longitudinal edges along its length that are depicted as not overlapping, where the interior cavity diameter is adjusted by fasteners configured to compress the heater to reduce the size of the cavity, considered to inherently adjust the circumferential distance between the opposing longitudinal edges of the tube).
Regarding claim 6, Li discloses the non-combustible aerosol provision device according to claim 5. Li discloses the tube comprises fasteners that form a portion of the tube between the opposing longitudinal edges when the opposing longitudinal edges are not overlapping one another, ([Fig 1, ref 2, depicting the fasteners circumscribing the tube and forming a portion of the tube in between the opposing longitudinal edges).
Regarding claim 7, Li discloses the non-combustible aerosol provision device according to claim 2. Li further discloses that the adjustment mechanism comprises a frame (considered the fastener and tube) having one or more guides and the tube comprises one or more guide elements, each of the one or more guide elements being configured to engage with a respective one of the one or more guides to cause a diameter of the tube to be adjusted when the frame is moved relative to the tube, ([0052] the fastener is connected to the heater tube reasonably disclosing guide and guide elements at the points of connection and suggesting a skill in the art capable of making such configuration).
Regarding claim 16, Li discloses the non-combustible aerosol provision device according to claim 1. Li discloses the adjustment mechanism allows the user to configure the chamber between a first configuration in which the chamber has a first width and a second configuration in which the chamber has a second width different from the first width, ([0052] the chamber defined by the heater has a first inner diameter when the fastener is cool, and is forced into a second configuration with a smaller inner diameter when the fasteners are heated, disclosing two configurations where the inner width of the chamber is different).
Regarding claim 26 and 28, Li discloses the non-combustible aerosol provision device according to claim 1. Li discloses the non-combustible aerosol provision device is a tobacco heating product, configured to receive and generate the aerosol from each of a plurality of consumables comprising tobacco and having different sizes, ([066] disclosing that a purpose of the device it to heat tobacco, [0007] disclosing that the device accommodates cigarettes of different sizes).
Claim(s) 1, 15, 26, and 28 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Batista et al. (US 2022/0295894 A1).
Regarding claim 1, Batista discloses:
A non-combustible aerosol provision device for generating an aerosol from an aerosol-generating material, the non-combustible aerosol provision device, ([0001]-[0002] an aerosol generating device for generating an inhalable vapor by heating without burning the aerosol forming substrate), comprising: a chamber for receiving a consumable comprising aerosol-generating material to enable the non-combustible aerosol provision device to generate an aerosol from the aerosol-generating material, ([0002]); and an adjustment mechanism to allow a user to adjust a dimension of the chamber to allow the chamber to accommodate, one at a time, each of a plurality of consumables having different sizes, ([0004]-[0010] the chamber is formed of a plurality of susceptors arranged to form a hollow cylindrical arrangement, in the form of a tube, where the susceptors are flexible and are configured to form a cavity smaller than the diameter of the aerosol generating article to be inserted into the tube, where the flexible susceptors adapt to accommodate the larger diameter of the aerosol generating article, inherently capable of accommodating different sized diameter articles).
Regarding claim 15, Batista discloses the non-combustible aerosol provision device according to claim 1. Batista discloses the adjustment mechanism comprises a biasing element configured to act to decrease the dimension of the chamber, and wherein the adjustment mechanism allows the user to work against the biasing element to increase the dimension of the chamber to allow insertion of the consumable comprising aerosol-generating material, ([0009] flexible susceptors configured to have diameter less than the diameter of the aerosol generating article, and comprise a suspension spring [0013]-[0014] configured to enable radial movement of the susceptors, understood to be a biasing element that decreases the diameter of the chamber formed by the flexible susceptor elements, where a user must work against the compression of the spring to allow insertion of the consumable comprising aerosol generating material).
Regarding claim 26 and 28, Batista discloses the non-combustible aerosol provision device according to claim 1. Batista discloses the aerosol forming substrate may comprise tobacco, ([0044]), and the device of claim 1 inherently may accommodate consumables having different widths (sizes) based on the flexible configuration of the chamber).
Claim(s) 1-3, 16, 26-28 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Blandino et al. (US 2017/0055580 A1).
Regarding claim 1-2, Blandino discloses:
A non-combustible aerosol provision device for generating an aerosol from an aerosol-generating material, ([0003]), the non-combustible aerosol provision device comprising:
a chamber, (Fig 4 A&B ref 1113), for receiving a consumable comprising aerosol-generating material, (Fig 3), to enable the non-combustible aerosol provision device to generate an aerosol from the aerosol-generating material; and
an adjustment mechanism to allow a user to adjust a dimension of the chamber to allow the chamber to accommodate, one at a time, each of a plurality of consumables having different sizes, ([0043]-[0047], [0137]-[0140] Fig 4 A&B disclosing a chamber where the width is configurable by a user, disclosed as adjustable to compress a consumable to improve heat transfer understood to anticipate the ability to accommodate consumables of different diameters, anticipating the limitation).
Regarding claim 3, Blandino discloses the non-combustible aerosol provision device according to claim 2. Blandino discloses two elements that are arranged to form a tube, see Fig 4-A-B, ref 160 and 170, which each anticipate a sheet of material (considered to be an element having length, width, and thickness to encircle the chamber), where as depicted in Figs 4A-B are adjustable with respect to each other to adjust the diameter/width of the tube).
Regarding claim 16, Blandino discloses the non-combustible aerosol provision device according to claim 1. Blandino discloses that the adjustment mechanism allows the user to configure the chamber between a first configuration, depicted in Fig 4A, where the chamber has a first width, and a second configuration in which the chamber has a second width, depicted in Fig 4B, where the first width and the second widths are depicted as being different.
Regarding claim 26 and 28, Blandino discloses the non-combustible aerosol provision device according to claim 1. Blandino discloses that the non-combustible aerosol provision device is a tobacco heating product, ([0073] teaching that the device may be used to heat a tobacco product) configured to receive and generate the aerosol from each of a plurality of consumables comprising tobacco and having different sizes, (Fig 4A-B, where the diameter of the chamber holding the consumable is adjustable inherently meeting the limitation that a plurality of different sized consumables comprising tobacco may be received in the device, which may be used to generate aerosol from those consumables).
Regarding claim 27, Blandino discloses:
A non-combustible aerosol provision device for generating an aerosol from an aerosol-generating material, ([0003]), the non-combustible aerosol provision device comprising: a chamber, (Fig 4 A&B ref 1113), for receiving a consumable comprising aerosol-generating material, (Fig 3), to enable the non-combustible aerosol provision device to generate an aerosol from the aerosol-generating material; and an adjustment mechanism configured: to allow a user to increase a width of the chamber to allow the consumable to be inserted into the chamber, and once the consumable is inserted into the chamber, to decrease the width of the chamber to cause the chamber to fit to a width of the consumable, ([0043]-[0047], [0137]-[0140] Fig 4 A&B disclosing a chamber where the width is configurable by a user, disclosed as adjustable to compress a consumable to improve heat transfer).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Foehr (US 1,835,946) disclosing a cigarette holder comprising a conical tube, to hold a cigarette, formed of a sheet where an adjustment mechanism allows the compression of the tube and relative movements between two edges of the sheet forming the conical tube, to allow different sized consumables to be held by the holder, (col 1 line 20 - col 62).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL E VAKILI whose telephone number is (571)272-5171. The examiner can normally be reached Monday - Friday 7:30 am - 4:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H. Wilson can be reached at (571) 270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.E.V./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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