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
Applicant’s election without traverse of Group I (claims 1-11 and 18, drawn to an aerosol generation device with a constrictable heater element) in the reply filed on 12/31/2025 is acknowledged.
Claims 12-17 and 22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 12/31/2025.
Information Disclosure Statement
The information disclosure statement (IDS) filed on 8/3/2023 and 8/28/2025 has been considered by the Examiner.
Drawings
The drawings are objected to because: it appears that the arrows for “46” and “48” in Figure 7 are in the incorrect place and/or not pointing to the intended location of the heater element “40”, as based upon the written specification portion that explains the drawing. The description of “48” is of a section of the heater element “40”, and the associated arrow is not at all pointing to the heater element. And similarly, the arrow of the first portion “46” is pointing in a general region of the consumable “100” and not to the section of the heater element “40”. See [0123-0124] of the written specification that provides description of the drawing. 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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
Specification
The disclosure is objected to because of the following informalities: Paragraph 0129 refers to “46” as “one portion” and “48” as the “other portion”. In the rest of the specification, “46” is referred to as “the first portion” and “48” is “the second portion”. There should be consistency in the naming of the same reference characters “46” and “48”, such that paragraph 0129 should be modified to have these same titles as in the rest of the specification, or Fig. 8 should be amended so as to have “one portion” and the “other portion” to be different reference characters.
Appropriate correction is required.
Claim Objections
Claims 2-8, 10-11, and 18 objected to because of the following informalities:
Dependent claims 2-8, 10-11, and 18 each do not have a comma between the claim number that is being referred to and the following word “wherein”. It is recommended that commas after each of the preambles of the dependent claims (such as is down in claim 9), so as to improve clarity and structure of the written claims.
Appropriate correction is required.
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: “a system for causing heating of the heater element” in claim 1 line 5.
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: (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.
Claims 1-9, 11 and 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by ‘802 (CN112293802A).
Regarding claim 1, ‘802 teaches an aerosol generation device for generating an aerosol from an aerosol forming consumable (smoke generating device [title], which is non-combustion based [pg. 2 of machine translation]. The consumable aerosol generating rod “40” is placed into the device for generating the aerosol [see Figs. 2-4, pg. 3 of machine translation]), comprising
At least one heater element (left “10” and right “20” heating sheets are arranged, see Figs. 1-2), the heater element defining at least partially a heater chamber for receiving the consumable therein (the heaters “10” and “20” form an arc-shaped channel “30” [Fig. 1, pg. 3 of machine translation]. The heater chamber is considered to be this channel “30”, wherein the consumable is placed into the channel [see Fig. 2]),
A system for causing heating of the heater element (power supply may be provided that provides power to the heating sheets “10” and “20” [pg. 4 of machine translation]. Wherein the heating may occur through conduction [pg. 3-4 of machine translation]),
Wherein the heater element is constrictable, in use, to reduce a volume of the heater chamber from a first volume to a second volume (“at least one of the left heating sheet 10 and the right heating sheet 20 is moveable to adjust the distance between the left heating sheet and the right heating sheet 20” [pg. 3 of machine translation, Figs. 1-5]. The movement of 10 and/or 20 leads to the ability to clamp the aerosol generating rod “40” leading to improved efficiency [pg. 3 of machine translation]. See also Fig. 3 to Fig. 4, wherein the heater elements are in an out position and then in a “clamp” position around the rod “40”. As such, because the heating sheets “10” and “20” each or both may be adjustable so as to clamp on the aerosol forming consumable, it is considered thus that the heater elements 10/20 are “constrictable” and would necessarily lead to a reduction in volume of the heater chamber when moving from an open position to a ”clamp” position around the consumable).
Regarding claim 2, ‘802 teaches an aerosol generating device, wherein the heater element encircles the aerosol forming consumable when the consumable is inserted into the heating chamber (see Figs. 2-4, wherein the consumable aerosol forming rod “40” is placed into the channel “30”, such that it is surrounded by the heater elements “10”/”20”).
Regarding claim 3, ‘802 teaches an aerosol generating device, wherein the heater element comprises an elongate hollow tube (see Fig. 1, wherein the heater element is clearly an elongate hollow tube with the heating chamber/channel “30” located inside of it).
Regarding claim 4, ‘802 teaches an aerosol generating device, wherein the heater element is configured to restrict to reduce an internal dimension of the elongate hollow tube (see Figs. 3-4, wherein the constriction of the heater element 10/20 is clearly evident, wherein the heater element clamps onto the rod “40”, as the internal diameter of the element/hollow tube sees a decrease in its internal diameter).
Regarding claim 5, ‘802 teaches an aerosol generating device, wherein the elongate hollow tube is defined by a tubular wall and wherein the elongate hollow tube comprises a split in the tubular wall of the hollow tube (the tubular wall would be considered to be the outer surface of 10/20, as in Figs. 1-2 for example. A split in the tubular wall is clearly evident in Figs. 1-2, where “10” meets “20” for example).
Regarding claim 6, ‘802 teaches an aerosol generating device, wherein the split extends longitudinally along the elongate hollow tube (see Figs. 1-2, wherein the split clearly extends along the longitudinal/length of the tube).
Regarding claim 7, ‘802 teaches an aerosol generating device, wherein the elongate hollow tube has a C-shaped cross section (the hollow tube would have a c-shaped cross-section at least when “10”/”20” are separated from each other as in Fig. 3).
Regarding claim 8, ‘802 teaches an aerosol generating device, wherein the elongate hollow tube has a substantially circular cross section (as in Figs. 1-5, the tube clearly has a substantially circular cross-section).
Regarding claim 9, ‘802 teaches an aerosol generating device, wherein the elongate hollow tube has a substantially circular cross-section (as in Figs. 1-5, the tube clearly has a substantially circular cross-section), wherein the tube has tubular wall ends defined by the split and wherein the tubular wall ends move in a circumferential direction of the elongate hollow tube when the heater element constricts in use (as in Figs. 3-4, the tubular wall ends, considered to be “10” and “20” which are on opposite sides of the split, clearly move in a circumferential direction when the heater element constricts, as they constrict inwards around the consumable rod).
Regarding claim 11, ‘802 teaches an aerosol generating device, wherein the heater element is configured to constrict to reduce a diameter of the elongate hollow tube (as in Figs. 3-4, heater elements “10” and “20” clearly constrict inwards in the direction of the inserted consumable rod “40”, such that on constriction the diameter of the hollow tube is clearly reduced).
Regarding claim 18, ‘802 teaches an aerosol generating device, wherein heater element comprises a homogenous or substantially homogenous material (preferably, “10” and “20” is composed of “silicon carbide, molybdenum disilicide, lanthanum chromate, tin dioxide or crystalline silicon of the one or more mixed conductivity of metal or alloy particles are sintered together” [pg. 3 of machine translation]. As ‘802 teaches that a single one of these may be utilized, it is considered that ‘802 clearly teaches that the heater element may be homogenous or substantially homogenous material when the heater element is a single one of these materials as ‘802 teaches).
Claims 1-9, 11, 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hejazi (US2020/0060340A1).
Regarding claim 1, Hejazi teaches an aerosol generation device for generating an aerosol from an aerosol forming consumable (aerosol delivery device “100” as in Figs. 1-2, which utilizes an aerosol source member “104” to generate the aerosol [0034]), comprising
At least one heater element (as in Figs. 6-7, there are heating elements “320” which are connected with jaw sections “312” [0088]), the heater element defining at least partially a heater chamber for receiving the consumable therein (the heaters/jaw sections together define a heating chamber located in the middle of the heaters, see Figs. 6-7. The aerosol source member is placed inside of this chamber [0088]),
A system for causing heating of the heater element (power supply may be provided to the electrical components of the device for heating [0047]. Resistive/conductive heating may be used to heat the aerosol source member [0053]),
Wherein the heater element is constrictable, in use, to reduce a volume of the heater chamber from a first volume to a second volume (each of the heaters “320” and the associated jaw sections “312” is moveable between different positions [0088-0090]. See Fig. 7, wherein it may be arranged in an open position and in a closed position wherein the diameter is reduced and the heater elements move and is “constrictable”, such that the volume of the heater chamber is reduced from a first volume (in the top of Fig. 7) to a second volume (in the bottom of Fig. 7). As such, because the heaters and associated structures are adjustable, it would reasonably be considered that the heater element is constrictable to reduce a volume of the heater chamber).
Regarding claim 2, Hejazi teaches an aerosol generating device, wherein the heater element encircles the aerosol forming consumable when the consumable is inserted into the heating chamber (see Figs. 6-7, wherein the aerosol forming source is placed inside of the heating elements, such that the tubular shape of the heating elements would clearly encircle the consumable [0088-0090]).
Regarding claim 3, Hejazi teaches an aerosol generating device, wherein the heater element comprises an elongate hollow tube (as the heater element is considered to comprise both the heating element “320” and the moveable jaw sections “312”, the heater element overall would form an elongate hollow tube as in Figs. 6-7 [0088-0090]. It being noted that the tube is considered “hollow” as the vast majority of the elongate tube does not have solid sections within the tube).
Regarding claim 4, Hejazi teaches an aerosol generating device, wherein the heater element is configured to restrict to reduce an internal dimension of the elongate hollow tube (as shown in Fig. 7, the heater element clearly constricts from an open to a closed position, which reduces the internal diameter of the hollow tube).
Regarding claim 5, Hejazi teaches an aerosol generating device, wherein the elongate hollow tube is defined by a tubular wall and wherein the elongate hollow tube comprises a split in the tubular wall of the hollow tube (the tubular wall would be considered to be the outer surface of the tube in Figs. 6-7. A split in the tubular wall is clearly evident in Figs. 6-7, where each of the different sections “312” joint together).
Regarding claim 6, Hejazi teaches an aerosol generating device, wherein the split extends longitudinally along the elongate hollow tube (see Figs. 6-7, wherein the split as defined above clearly extends along the longitudinal length of the tube).
Regarding claim 7, Hejazi teaches an aerosol generating device, wherein the elongate hollow tube has a C-shaped cross section (the hollow tube would have a c-shaped cross-section at least when the tube is in the open position).
Regarding claim 8, Hejazi teaches an aerosol generating device, wherein the elongate hollow tube has a substantially circular cross section (as in Fig. 7, the tube would have a substantially circular cross-section).
Regarding claim 9, Hejazi teaches an aerosol generating device, wherein the elongate hollow tube has a substantially circular cross-section (as in Figs. 6-7, the tube clearly has a substantially circular cross-section), wherein the tube has tubular wall ends defined by the split and wherein the tubular wall ends move in a circumferential direction of the elongate hollow tube when the heater element constricts in use (as in Figs. 6-7, the tubular wall ends, considered to be circumferential ends of respective different sections of the heater, clearly would move in a circumferential direction when the heater element constricts, as they constrict inwards around the consumable rod, and would have at least partial movement in the circumferential direction thereof).
Regarding claim 11, Hejazi teaches an aerosol generating device, wherein the heater element is configured to constrict to reduce a diameter of the elongate hollow tube (as in Figs. 6-7, heater elements “320” clearly constrict inwards in the direction of the inserted consumable, such that on constriction the diameter of the hollow tube is clearly reduced).
Regarding claim 18, Hejazi teaches an aerosol generating device, wherein heater element comprises a homogenous or substantially homogenous material (Hejazi teaches that the heater may be made of a single material such as steel or metal alloy [0089], such that when the heater is a single one of these materials as Hejazi teaches, the element would clearly therefore be a substantially homogenous material with substantially same material throughout).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over ‘802 (CN112293802A), and further in view of ‘802 (CN112293802A).
Regarding claim 10, ‘802 states that the heating sheets “10” and “20” are preferably symmetrical [pg. 3 of machine translation]. From this wording, it is clear that this a preferred aspect and is not required for the invention. In cases wherein “10” and “20” are not symmetrical and of the same size, the two surfaces would necessarily overlap in the circumferential direction when clamping down along the rod “40” because of this difference in shape/size. It is also well settled that an applied reference may be relied upon for all that it would have reasonably suggested to one of the ordinary skill in the art, including not only preferred embodiments, but less preferred and even non-preferred Merc & Co v. Biocraft Labs, Inc., 874 F 2d 804,807 10 USPQ 2nd 1843, 1846 (Fed. Cir. ). Therefore, from the disclosure of ‘802, one of ordinary skill in the art would have reasonably concluded that different shaped/sized heating sheets “10” and “20” are within the scope of the invention, and when these are utilized, the respective ends thereof would necessarily see an overlap in the circumferential direction of the elongate hollow tube.
In the alternate, claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over ‘802 (CN112293802A), as applied to claim 6 above, and further in view of Moloney (WO2020188247A1).
In the alternate regarding claims 9-10, Moloney teaches a heater for a vapor system [title], which is clearly in the same field of endeavor as ‘802. The heater “110” may have a variety of structures, including in an elongate hollow tube [see Figs. 18-23]. The tube may have edge portions which are overlapped in the circumferential direction [see Figs. 18A-18B], such that the tube is formed in a closed tubular format. When arranged as such, the edges are “free to slide over each other so as to reduce or expand the circumference of the tube, and hence the capacity of the volume 112” [pg. 16 of machine translation]. Based off Figs. 18A-18B, the constriction of the heater clearly occurs along the circumferential direction thereof, and with substantially circular cross-section.
One of ordinary skill in the art would have found it obvious to modify ‘802 so as to have the overlapping edges in the circumferential direction and circumferential closing/opening as suggested by Moloney. One would have been motivated so as to allow for a wide variety of sizes to fit and not fall out, and to allow for changes in volume depending on the operation of the device [Moloney, pg. 16 of machine translation]. And this simple substitution to the known element of the clamping direction/method (such that there would be overlap in the circumferential direction thereof) would have been obvious for the person of ordinary skill to obtain the predictable results as listed above (of allowing for a wide variety of sizes to fit, to allow for changes in volume, etc.). See MPEP2143 I.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Hejazi (US2020/0060340A1), as applied to claim 9 above, and further in view of Moloney (WO2020188247A1).
Regarding claim 10, Hejazi does not explicitly show the tubular wall ends overlapping in the circumferential direction of the elongate hollow tube. However, this is known within the art of aerosol generation devices, as an alternative constriction method of the heater. Moloney teaches a heater for a vapor system [title], which is clearly in the same field of endeavor as Hejazi. The heater “110” may have a variety of structures, including in an elongate hollow tube [see Figs. 18-23]. The tube may have edge portions which are overlapped in the circumferential direction [see Figs. 18A-18B], such that the tube is formed in a closed tubular format. When arranged as such, the edges are “free to slide over each other so as to reduce or expand the circumference of the tube, and hence the capacity of the volume 112” [pg. 16 of machine translation]. Based off Figs. 18A-18B, the constriction of the heater clearly occurs along the circumferential direction thereof, and with substantially circular cross-section.
One of ordinary skill in the art would have found it obvious to modify Hejazi so as to have the overlapping edges in the circumferential direction and circumferential closing/opening as suggested by Moloney. One would have been motivated so as to allow for a wide variety of sizes to fit and not fall out, and to allow for changes in volume depending on the operation of the device [Moloney, pg. 16 of machine translation]. And this simple substitution to the known element of the clamping direction/method (such that there would be overlap in the circumferential direction thereof) would have been obvious for the person of ordinary skill to obtain the predictable results as listed above (of allowing for a wide variety of sizes to fit, to allow for changes in volume, etc.). See MPEP2143 I.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
WO2018194291A2
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/T.F.S./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749