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 .
Claim Objections
Claim 1 is objected to because of the following informalities:
Regarding claim 1, line 5 recites in part: “the support is positioned proximate the first end“ but should recite “the support is positioned proximate to the first end”. Appropriate correction is required.
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)(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, 5, 11-12 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 heating apparatus for an aerosol generating device comprising: a heating chamber, ([0003] an aerosol generating device in which secure holding of an aerosol generating article within a cavity of the aerosol generating article is improved), comprising an opening arranged at a first end of the heating chamber for receiving an aerosol generating substrate; and a susceptor assembly comprising a support, ([0013]-[0014] a first suspension spring with downstream portions of the susceptors attached) and a plurality of susceptor branches, ([0004] a susceptor arrangement with at least two elongate susceptors arranged in the cavity), extending from the support, wherein, in use, the support is positioned proximate the first end of the heating chamber and the plurality of susceptor branches extend toward a second end of the heating chamber, (see generally annotated Fig 5B).
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Regarding claim 5, Batista discloses the heating apparatus of claim 1. Batista discloses each of the plurality of susceptor branches is configured to flex toward a wall of the heating chamber when the aerosol generating substrate is received in the heating chamber, ([0009]).
Regarding claim 11-12, Batista discloses the heating apparatus of claim 1. Batista discloses the heating chamber comprises a chamber wall configured to support an induction heating coil of an electromagnetic field generator, ([0030], [0104] Fig 2).
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(s) 1-2, 5-8, and 11-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (US 2020/0359693 A1), in view of Batista et al. (US 2022/0295984 A1)
Regarding claim 1, Lee discloses a device comprising a heating apparatus for an aerosol generating device comprising: a heating chamber comprising an opening arranged at a first end of the heating chamber for receiving an aerosol generating substrate; and a heating assembly comprising a support and a plurality of heaters, ([0047]), extending from the support (as depicted in Fig 9 the heater extends from a structure that would act as a support at the first end of the chamber ), wherein, in use, the support is positioned proximate the first end of the heating chamber and the plurality of susceptor branches extend toward a second end of the heating chamber. Lee discloses that the heater may be any type of heater that may be heated to a desired temperature, ([0044]), and explicitly discloses that the heater may include an induction heater, with an electrically conductive coil for heating a cigarette in an induction heating method, ([0045]), where the heater is positioned outside the cigarette, disclosing that the heating element may heat the outside of the cigarette according to the shape of the heating element, ([0046]), and that the device may include a plurality of heaters, ([0047]), and while Fig 9 is discloses as having a cylindrical film heater for heating the outside of the cigarette, Lee explicitly suggests that the type of heater is not limited to the type disclosed in this embodiment, ([0100]).
Batista teaches a heating apparatus for an aerosol generating device, ([0003]), and is thus within the inventor’s field of endeavor. Batista further teaches a device comprising: a heating chamber, ([0003] an aerosol generating device in which secure holding of an aerosol generating article within a cavity of the aerosol generating article is improved), comprising an opening arranged at a first end of the heating chamber for receiving an aerosol generating substrate; and a susceptor assembly comprising a support, ([0013]-[0014] a first suspension spring with downstream portions of the susceptors attached) and a plurality of susceptor branches, ([0004] a susceptor arrangement with at least two elongate susceptors arranged in the cavity). Batista further teaches that the susceptors may be configured to be flexible, to improve the insertion of the aerosol generating article into the cavity of the aerosol generating device, ([0009]), allowing the susceptors to adapt to the shape of the aerosol generating article inserted the cavity, to hold the article securely despite expected changes in the diameter of the article during smoking, ([0009]).
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Lee according to the teachings of Batista, to more securely hold the smoking article throughout the entire smoking process. One of ordinary skill in the art would have been capable of modifying the structures of Lee to incorporate the susceptors and support of Batista, for the advantages disclosed by Batista, which include securely holding the smoking article despite changes in the diameter which occur as the aerosol generating material is depleted during smoking. One of ordinary skill in the art would have believed the modification would be successful because Lee discloses that the various elements required by the modification, such as inductive heating, a plurality of heating elements, heating from the outside of the smoking article, are all compatible with the design of Lee.
Regarding claim 2, modified Lee discloses the heating apparatus of claim 1.
Batista teaches including the support (spring), is arranged between a thermally insulating element and the susceptor arrangement, that the support is configured to be flexible, and the thermally insulating element supports the support, ([0111] Fig 5A depicting the thermally insulating element as a ring).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified Lee to make include the thermally insulating ring around the support of Batista, and to make the support of Batista out of susceptor material. Batista teaches that the susceptor material is flexible, which is a function needed in the support of Batista, to enable radial movement. One of ordinary skill in the art would have appreciated that by using susceptor material for the support, fewer materials of construction would be used in the heating apparatus which would avoid issues related to material incompatibilities and simplify manufacturing processes. Because Batista includes a thermally insulating element around the support, one of ordinary skill in the art would reasonably expect that using susceptor material to form the support would be successful, since the heating chamber would be protected from the heat given off by the support.
Regarding claim 5, modified Lee discloses the heating apparatus of claim 1. Batista teaches each of the plurality of susceptor branches is configured to flex toward a wall of the heating chamber when the aerosol generating substrate is received in the heating chamber, ([0009]).
Regarding claim 6, modified Lee discloses the heating apparatus of claim 1. Batista teaches that the downstream end of the susceptor arrangement is flared out, larger than the diameter of the aerosol generating article, to ease its insertion, and the inner diameter of the susceptor arrangement upstream corresponds to or is slightly smaller than the outer diameter of the aerosol generating article, ([0097]), reasonably suggesting that the susceptors are angled inwardly towards a central axis of the heating chamber as the susceptor extends away from the support.
Regarding claim 7, modified Lee discloses the heating apparatus of claim 1. Batista teaches a second suspension spring attached to, and encircling the susceptor branches, configured to allow the susceptor branches to flex outward to accommodate a smoking article securely, ([0009], [0111). The inclusion of a second suspension spring meets the limitation of an abutment portion configured to maintain a separation between the wall of the heating chamber and the susceptor branches when the aerosol generating substrate is received in the heating chamber.
Regarding claim 8, modified Lee discloses the heating apparatus of claim 1. Batista teaches that each susceptor may have a concave inner surface, ([0012]). A concave inner surface of the susceptor meets the limitation of a ridge, (Specification [pg 5 lines 16-22] where the crest of a concave susceptor points toward the heating chamber the slopes of the ridge provide a larger contact area with the aerosol generating substrate).
Regarding claim 11-12, modified Lee discloses the heating apparatus of claim 1. Lee discloses that the heater may include an electrically conductive coil for heating a cigarette in an inductive heating method, ([0045]).
Batista teaches the heating chamber comprises a chamber wall configured to support an induction heating coil of an electromagnetic field generator, ([0030], [0104] Fig 2).
Claim(s) 3, and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (US 2020/0359693 A1) and Batista et al. (US 2022/0295984 A1) as applied to claim 1 above, and further in view of Mironov et al. (US 2022/0408827 A1).
Regarding claim 3, modified Lee discloses the heating apparatus of claim 1.
Batista teaches an insulating ring that encircles the support. Neither Lee nor Batista disclose or teach that the susceptor assembly is configured to be removable from the heating chamber, however courts have found that making components of a device separable to be obvious, if it were considered desirable for any reason, MPEP 2144.04 Legal Precedent as Source of Supporting Rationale, V. C. Making Separable. Here one of ordinary skill in the art would appreciate that making the susceptor assembly removable would assist in the cleaning of the susceptor assembly, as well as allow replacement of the assembly is it became worn or damaged without needing to replace the entire device.
Mironov teaches an aerosol generating device comprising a housing having a chamber and an induction coil disposed around at least a portion of the chamber, ([pg 1 lines 30-32]), and thus is within the inventor’s field of endeavor. Mironov teaches that making the heating element removably attached to the heating compartment to facilitate easy cleaning or replacement, ([pg 3 lines 29-30]). Mironov teaches a heating apparatus may be configured to be held in the chamber of a housing by a press fit, with a ring having an outer diameter essentially corresponding to the inner diameter of the chamber to facilitate a press fit, ([pg 3 lines 31-33]).
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to have further modified Lee according to the teachings of Mironov, to make the susceptor apparatus removable from the device of Lee by adding dimensioning the thermally insulating ring of Batista, where the ring is dimensioned to essentially correspond to the chamber of Lee, and enable a removable attachment of the susceptor apparatus, such that friction between the ring and the chamber wall holds the susceptor apparatus in place, while still allowing the support of Batista to expand and contract.
Regarding claim 10, modified Lee discloses the heating apparatus of claim 1 and, the further modifications according to claim 3 above. Lee depicts the smoking article in the apparatus, with a gap below the smoking article, and depicts an airflow through the bottom of the smoking article to the proximate end of the article.
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified Lee to ensure that the smoking article was not seated directly against the end wall of the heating chamber, because this would interfere with the air flow through the longitudinal axis of the smoking article.
Lee and Batista do not disclose any particular configuration of the heating chamber, which would prevent a flush seating of the end of the smoking article in the heating chamber.
Mironov teaches that the heating apparatus may be removable from the chamber, and further discloses structures that would prevent a smoking article from being inserted into the chamber such that the axial end is seated against the end wall of the heating chamber, (Fig 1, cross pattern at the bottom of the insert).
It would be obvious before the effective filing date of the claimed invention, to have further modified the heating chamber of Lee to incorporate these structures to prevent the end of the smoking article from being seated against the end of the heating chamber and interfering with the axial flow of air through the article. One of ordinary skill in the art would have recognized the end structures of Mironov’s holder would have successfully accomplished this function and believed that they would work in a heating chamber, because they structures work similarly in Mironov.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (US 2020/0359693 A1) and Batista et al. (US 2022/0295984 A1) as applied to claim 1 above, and further in view of Batista et al. (US 2024/0032603 A1) Batista 2.
Regarding claim 4, modified Lee discloses the heating apparatus of claim 3.
Batista talks about integrally forming the spring (support) with the thermally insulating element (ring), ([0111]), but does not specifically suggest the process for doing so. The limitation requiring the ring to be overmoulded onto the support is a product by process limitation, which structurally integrates the ring and support together. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985), (MPEP 2113). Because overmoulding is considered a process by which the ring is integrated with the support, and Batista discloses that the ring and support may be integrally formed, this limitation is considered to be met.
Lee, Batista and Mironov do not disclose perforating the support.
Batista 2 teaches a non-combustible cigarette with improved ventilation, ([003]-[0004]), and thus is within the inventor’s field of endeavor. Batista 2 teaches that although some non-combustible cigarettes have perforations near the mouth end of the cigarette, it may be desirable to form non-combustible cigarettes lower on the smoking article, to facilitate mixing of the ventilation air and aerosol, ([0036], [0052]).
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to further modify Lee and perforate the support to provide gaps within the sections of the support that encircle the smoking article, to enable ventilation air to transmit through perforations that may be in this reason. Batista 2 teaches that cigarettes may have perforations in a variety of locations, to provide ventilation to the aerosol streams generated by the article, and providing perforations in the support would reduce the likelihood that these ventilation holes would be blocked by the support. One of ordinary skill in the art would reasonably believe that such perforations would not interfere with the function of the support, and thus believe that the modification would be successful.
Allowable Subject Matter
Claim 9 contains allowable subject matter.
The following is a statement of reasons for the indication of allowable subject matter: Batista et al. (US 2022/0295984 A1) is considered the closest prior art of record. Batista discloses the heating apparatus of claim 1, as discussed in the rejections above. Although it is considered obvious to prevent the insertion of a smoking article into a heating chamber, such that its longitudinal end face is flush against an end wall of the heating chamber, neither Batista nor any of the other prior art of record teaches including a limiting portion as part of the susceptor, configured to limit a depth to which the aerosol generating substrate can be received, in addition to the other limitations of claim 1. One of ordinary skill in the art would not have found it obvious to make this modification, in the absence of impermissible hindsight.
Claim 9 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.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 6, and 11-12 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims of copending Application No. 18/274,919. Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claim 1, 18/274,919 discloses: a heating apparatus for an aerosol generating device comprising: a heating chamber comprising an opening arranged at a first end of the heating chamber for receiving an aerosol generating substrate; and a susceptor assembly comprising a support and a plurality of susceptor branches extending from the support, wherein, in use, the support is positioned proximate the first end of the heating chamber and the plurality of susceptor branches extend toward a second end of the heating chamber, (Claim 1).
Regarding claim 6, 18/274,919 discloses the heating apparatus of claim 1, wherein a length of each of the plurality of susceptor branches is angled such that each length extends inwardly toward a central axis of the heating chamber as the respective susceptor branch extends away from the support, (claim 9).
Regarding claim 11, 18/274,919 discloses the heating apparatus of claim 1, wherein the heating chamber comprises a chamber wall configured to support an induction heating coil of an electromagnetic field generator, (claim 14).
Regarding claim 12, 18/274,919 discloses: An aerosol generating system comprising: an aerosol generating substrate; an electromagnetic field generator; and a heating apparatus according to claim 1, (claim 15).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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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/D.E.V./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747