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 .
Status of the Claims
Claims 1-11 are pending and are subject to this Office Action. This is the first Office Action on the merits of the claims.
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-6 drawn to a heater product in the reply filed on 4/20/26 is acknowledged. The traversal is on the ground(s) that: (1) Claim 1 is the sole independent claim, and (2) Batista fails to disclose a heating element extending along and protruding from the support surface. This is not found persuasive because:
(1)
First, the determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e). Thus, whether or not Claim 1 is the sole independent claim is irrelevant to the determination whether a group of inventions is so linked as to form a single general inventive concept.
Second, 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.
Claims 7 and 11 are drawn to a device and a system, respectively, each of which comprise the heater of Claim 1. However, Claims 7 and 11 do not further limit elements of the heater but rather limit elements of the device and system which are separate from the heater. Therefore, Claims 7 and 11 do not fit the requirements for a proper dependent claim and are considered to be independent claims that reference subject matter of claim 1.
(2)
Batista (US 20240008547 A1) discloses a heating element extending along and protruding from the support surface. Specifically, Batista discloses in Figs 5A and 5B, that susceptor element 12 protrudes from the thermal insulation element 26 and extends along the insulation element ([0094], [0101]). Thus, the thermal insulation element acts as a support component of the device and, while support ring 38 may comprise a portion of the support structure of Batista, the support ring is not the support structure upon which the Examiner relied in the requirement for unity determination.
The requirement is still deemed proper and is therefore made FINAL.
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.
Claims 1-3 and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Batista ‘565 (US 20200367565 A1)
Regarding Claim 1, Batista ‘565 discloses a heater for heating a consumable ([0001]) comprising a solid aerosol generating substrate, the heater comprising:
a base (The housing may comprise an outer housing and a tubular housing element positioned within the outer housing. [0046]); and
a heating element attached to a support surface of the base (The tubular housing element supports an elastic susceptor which is configured to heat an aerosol-generating substrate. [0016], [0048]-[0049]. The housing may further comprise a projection configured to heat the end of an aerosol-generating article. [0051]-[0053]),
wherein the heating element comprises a moulding surface configured to deform and heat the aerosol generating substrate (The elastic susceptor element 26 stretches and deforms to accommodate the exterior size and shape of the aerosol-generating article 14 and inductively heats the aerosol-forming substrate 36. [0016], [0096], Fig 1. Projection 34), and
wherein the heating element comprises a conductive track extending along and protruding from the support surface (The susceptor may comprise bands of metallic material supported by a tubular substrate. [0040]-[0042], [0054]. Projection 34 may be formed from a part of the housing and comprise a portion of the susceptor material arranged in one or more metallic tracks. [0052]-[0055], [0092], Fig 1).
Regarding Claim 2, Batista ‘565 discloses a heater further comprising
an extension protruding from the base to form a moulding shape or blade shape (The projection may comprise of a pin, rod, blade, or plate shape. [0052]),
wherein the conductive track is on the extension (The projection may comprise a metallic track. [0055]).
Regarding Claim 3, Batista ‘565 discloses a heater wherein the extension is monolithic with the base ("The projection may be formed by part of the housing." [0052]).
Regarding Claim 6, Batista ‘565 discloses a heater wherein:
the base comprises a porous ceramic material (The projection may have metallic tracks formed on a ceramic core and/or a protective layer of ceramic formed over the susceptor material. [0055]-[0056]), and
at least part of the support surface is exposed to receive a vapour or aerosol generated from the aerosol generating substrate (A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Here, “to receive a vapour or aerosol generated from the aerosol generating substrate” is a statement of intended use. Batista ‘565 teaches that a portion of the support structure and the projection may be porous. [0028], [0058]. Where the various support elements are porous, the device is capable of performing the intended use and meets the claim).
Claim Rejections - 35 USC § 103
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 4 is rejected under 35 U.S.C. 103 as being unpatentable over Batista ‘565 as applied to Claim 1 above, and/or in the alternative in further in view of Lim (US 20220408812 A1).
Regarding Claim 4, Batista ‘565 discloses the conductive track may be band shaped ([0041], [0042], [0054]), but does not explicitly disclose a conductive track comprising a serpentine shape. However, given that a conductive track comprising a serpentine shape merely involves a change in shape of the conductive track, the modification would be obvious to one having ordinary skill in the art. Absent evidence that the particular shape of the claimed conductive track was significant, a person having ordinary skill in the art would find the shape of the conductive track an obvious matter of design choice. See MPEP 2144.04(IV)(B). Therefore, it follows that a person having ordinary skill in the art, through the reshaping of the conductive track disclosed in Batista ‘565, would arrive at a conductive track comprising a serpentine shape as claimed, absent evidence to the contrary.
Moreover, Lim teaches an aerosol-generating device ([0001]) comprising a conductive track (the conductive material surrounding the tobacco rod may function as a susceptor heated by the induction heater. [0053], [0073]), wherein the conductive track comprises a serpentine shape (The conductive path may be formed along a zigzag-shaped path on a flexible substrate. [0099], [0103]).
Therefore, before the effective filing date of the claimed invention, it would have been obvious to one having ordinary skill in the art to modify the shape of the conductive track of Batista ‘565 with a serpentine shape as taught by Lim because Batista ‘565 and Lim are both directed to an aerosol-generating device comprising conductive tracks, Lim teaches an aerosol-generating device comprising a conductive track may be configured such that the conductive track is formed in a serpentine shape, and this merely involves applying a known component to a similar aerosol-generating device to yield predictable results.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Batista ‘565 as applied to Claim 1 above.
Regarding Claim 5, Batista ‘565 discloses a heater wherein the heating element protrudes from the support surface by a protrusion distance of at least 0.5mm (the projection may have a length between about 5 and 15 millimeters, a width between 1 and 8 millimeters, and a thickness between 0.01 and 2 millimeters. [0059]). The claimed range overlaps the range taught by the prior art and is therefore considered prima facie obvious.
Conclusion
The following prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Batista ‘547 (US 20240008547 A1, cited in the Requirement for Restriction/Election dated 1/20/26) teaches a heater for heating a consumable comprising a solid aerosol generating substrate ([0004]), the heater comprising:
a base (the device may comprise a housing to which the components are attached. [0018], [0047]-[0048]); and
a heating element attached to a support surface of the base (a heating element comprising a susceptor configured for heating an aerosol generating article and attached to the device housing. [0004],[0018], [0047]-[0048].),
wherein the heating element comprises a molding surface configured to deform and heat the aerosol generating substrate (The susceptor comprises a thermally deformable element configured to thermally deform during heating to contact/hold the aerosol-generating article. [0005]), and
wherein the heating element comprises a conductive track extending along and protruding from the support surface (The susceptor may be electrically conductive. [0058]. Each susceptor 12 has an elongate shape and protrudes into the cavity. [0091]-[0094], Figs 5A & 5B).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jeffrey Buckman whose telephone number is (571)270-0888. The examiner can normally be reached Monday-Friday 9:00-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at (571)270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JEFFREY A. BUCKMAN/ Examiner, Art Unit 1755
/PHILIP Y LOUIE/ Supervisory Patent Examiner, Art Unit 1755
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