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
Restriction argument by applicant has been considered and the restriction requirement is withdrawn. Restriction requirement of Group I (claims 1-11) and Group II (claims 12-13) are withdrawn and species restriction also withdrawn. Claims 1-13 are now treated on merit.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 12-13 are rejected under 35 USC 112 4th paragraph, as being an improper dependent claim for failing to include all the limitations of the claim upon which it depends and for failing to further limit the subject matter of the claim upon which it depends. Specifically, claim 12 only requires structure an induction heatable susceptor’ an oscillating circuit, an inverter and a controller and does not require actually performing steps of updating the operating frequency…; determining, using a controller, a resonant frequency…; setting, using the controller, the operating frequency…; and said updating step being continuously repeated…of claim 1. Applicant should consider amending claim 12 so that it does not include any reference to claim 1. As the Federal Circuit treats non-compliance with 35 USC 112 4th paragraph as a patentability issue, it is considered more appropriate to treat a claim that does not comply with 35 USC 112 4th paragraph by rejecting the claim under 35 USC 112 4th rather than by objecting to such claim under 37 CFR 1.75(c) as provided for in MPEP 608.01(n)(II). See Pfizer Inc. v. Ranbaxy Labs., Ltd., 457 F.3d 1284, 1291-92 (Fed. Cir. 2006).
Claims 1-11 are allowed.
The following is a statement of reasons for the indication of allowable subject matter: the prior art of record does not show or suggest the following sub-steps: determining, using a controller, a resonant frequency of the oscillating circuit during heating of the susceptor; and setting, using the controller, the operating frequency at the determined resonant frequency, said updating step being continuously repeated during the power delivery mode of the aerosol- generating device as recited in claims 1-11.
Response to Amendment
Applicant’s arguments with respect to claim(s) s 1-13 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: SEO et al (US 2023/0063257) discloses induction heating-type aerosol generation device and control method thereof.
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/QUANG T VAN/Primary Examiner, Art Unit 3761 September 28, 2026
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