Final Rejection
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 Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 11-15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 11 has been amended to recite “wherein the susceptor surrounds an outer surface of the chamber…” The term “the susceptor” lacks positive antecedent basis as it has not been previously recited.
Claims 12-15 are likewise rejected as depending from claim 11 and requiring all the limitations thereof.
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.
Claim(s) 1, 8, and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2017/0055583 to Blandino et al. (hereinafter Blandino) in view of WO 2018/041450 to Fursa et al. (hereinafter Fursa).
With respect to claims 1 and 8, Blandino teaches an aerosol generating device 300 comprising: a housing 140 comprising a chamber 113 (defined by dashed line) configured to accommodate an aerosol generating article; an induction coil 122 configured to generate a variable
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magnetic field; a susceptor 110 arranged to surround at least a portion of the chamber and configured to generate heat by the variable magnetic field; and a sensor 126 spaced apart from the induction coil in a length direction of the housing; and a processor 124 electrically connected to the induction coil and the sensor. See paras [0078, 0093-0095, 0098]. As shown in Figure 5 above, the sensor 126 is spaced apart from the susceptor 110 and induction coil 122 in a first direction parallel to the length direction of the housing. Furthermore, Blandino teaches the sensor is disposed adjacent to at least a portion of the outer surface of the aerosol generating article located within chamber 113 inasmuch as the sensor 126 is located not distant from the aerosol generating article. As shown in Figure 5, the susceptor 110 surrounds an outer surface of the chamber and the sensor is disposed on at least a portion of the outer surface of the chamber. Specifically, the sensor is located on an end wall of the chamber.
Blandino does not disclose that the sensor 126 is necessarily arranged in a region in which an intensity of the variable magnetic field is less than or equal to a designated value.
Fursa teaches an inductively heated aerosol generating device. Fursa recognizes that the electromagnetic field created during inductive heating causes “undesirable heating of adjacent conductive parts of the device.” See page 2, lines 14-20. As the temperature sensor of Blandino would have conductive/metallic parts, it would have been obvious to a POSITA to position the sensor of Blandino in a length direction such that the intensity of the variable magnetic field is minimized and the accuracy of the sensor measurements is maintained.
As to claims 9 and 10, the sensor measures the temperature of the aerosol generating article.
Claim(s) 2-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blandino and Fursa as applied to claim 1 above, and further in view of WO 2020/165450 to Frake et al. (hereinafter Frake).
With respect to claims 2 and 3, Blandino is silent as to a capacitive sensor configured to detect a moisture amount of the aerosol generating article. Frake discloses an aerosol generating device including a capacitive sensor for detecting a capacitance corresponding the moisture present in an aerosol generating article. See page 2, lines 20-26. Frake teaches that “[a] relatively high measured capacitance may be indicative of a relatively high water content. A relatively low measured capacitance may be indicative of a relatively low water content. The controller varies a supply of power to the at least one heater based on the measured capacitance. Advantageously, varying the supply of power to the at least one heater based on the measured capacitance may enable the system to generate an aerosol having consistent properties.” As Frake recognizes that moisture variability is a concern in tobacco-containing articles (page 3, lines 16-27), and as Blandino also discloses use of tobacco (para [0050]), it would have been obvious to include a capacitive moisture sensor in the aerosol generating device of Blandino. Furthermore it would have been obvious to use the capacitance measurements to control the supply of power to the heater (induction coil) in the manner disclosed by Frake.
As to claim 4, this limitation is directed to the intended use of the device. As the inductive heater is capable of preheating the aerosol generating article of Blandino, it meets the claim limitation. 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.
With respect to claims 5 and 6, Frake teaches that the controller supplies a low power profile to the heater for an initial period of time, which enables the heater to drive off the excess water content from the aerosol-forming substrate over the initial period of time, resulting in the water content of the aerosol-forming substrate being within the normal operating level after the initial period of time. Accordingly, the controller may be configured to supply a low power profile to the at least one heater for a predetermined initial period of time when the capacitance measurements indicate that the water content of the aerosol-forming substrate is above a normal operating level, and further configured to supply the normal power profile to the heater after the predetermined initial period of time. See page 5, lines 18-25. It would have been obvious that the second period of time would be longer than the first period of time if the device is generating an aerosol for an extended period of time.
As to claim 7, the sensors of Frake are disclosed to be electrical contacts. A POSITA would have been apprised of known electrical contacts, such as those fabricated from thin, metal film.
Claim(s) 11-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blandino in view of Fursa and Frake.
With respect to claim 11, Blandino teaches method of operating an aerosol generating device 300, the method comprising: obtaining a measurement from a sensor 126 and controlling the aerosol generating device to supply power to an induction coil 122 based upon the sensor measurement, thereby controlling the heat supplied to the aerosol generating article. See paras [0080-0081]. As shown in Figure 5, the susceptor 110 surrounds an outer surface of the chamber and the sensor is disposed on at least a portion of the outer surface of the chamber. Specifically, the sensor is located on an end wall of the
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chamber. Furthermore, Blandino teaches the sensor is disposed adjacent to at least a portion of the outer surface of the aerosol generating article located within chamber 113 inasmuch as the sensor 126 is located not distant from the aerosol generating article.
Blandino does not disclose that the sensor 126 is necessarily arranged in a region in which an intensity of the variable magnetic field is less than or equal to a designated value.
Fursa teaches an inductively heated aerosol generating device. Fursa recognizes that the electromagnetic field created during inductive heating causes “undesirable heating of adjacent conductive parts of the device.” See page 2, lines 14-20. As the temperature sensor of Blandino would have conductive/metallic parts, it would have been obvious to a POSITA to position the sensor of Blandino in a length direction such that the intensity of the variable magnetic field is minimized and the accuracy of the sensor measurements is maintained.
Blandino is silent to the sensor being one that measures capacitance corresponding to a moisture amount of the aerosol generating article. Frake discloses an aerosol generating device including a capacitive sensor for detecting a capacitance corresponding the moisture present in an aerosol generating article. See page 2, lines 20-26. Frake teaches that “[a] relatively high measured capacitance may be indicative of a relatively high water content. A relatively low measured capacitance may be indicative of a relatively low water content. The controller varies a supply of power to the at least one heater based on the measured capacitance. Advantageously, varying the supply of power to the at least one heater based on the measured capacitance may enable the system to generate an aerosol having consistent properties.” As Frake recognizes that moisture variability is a concern in tobacco-containing articles (page 3, lines 16-27), and as Blandino also discloses use of tobacco (para [0050]), it would have been obvious to include a capacitive moisture sensor in the aerosol generating device of Blandino. Furthermore it would have been obvious to use the capacitance measurements to control the supply of power to the heater (induction coil) in the manner disclosed by Frake.
As to claims 12-15, Frake teaches that the controller supplies a low power profile to the heater for an initial period of time (i.e. preheating), which enables the heater to drive off the excess water content from the aerosol-forming substrate over the initial period of time, resulting in the water content of the aerosol-forming substrate being within the normal operating level after the initial period of time. Accordingly, the controller may be configured to supply a low power profile to the at least one heater for a predetermined initial period of time when the capacitance measurements indicate that the water content of the aerosol-forming substrate is above a normal operating level, and further configured to supply the normal power profile to the heater after the predetermined initial period of time. See page 5, lines 18-25. It would have been obvious to extend the second period of time to be longer than the first period of time when the device is generating an aerosol for an extended period of time.
Response to Arguments
Applicant's arguments filed 15 May and 10 June 2026 have been fully considered but they are not persuasive.
On pages 5-6 of the Remarks filed 10 June 2026, Patent Owner states “Independent claim 1 has been amended as proposed by Applicant and agreed to by the Examiner during the telephone interview of May 28, 2026. That is, amended claim 1 recites, among others, the features of “the susceptor surrounds an outer surface of the chamber, and the sensor is disposed on at least a portion of the outer surface of the chamber.” However, no specific language was ever agreed upon in the interview. Instead, as set forth in the Examiner Interview Summary, the examiner suggested amending the claims so as “to recite the sensor position relative to the exterior of the longitudinal chamber walls” (emphasis added). It was this specific feature the examiner suggested would overcome the rejections of record. However, the instant amendments do not require the sensor to be located exterior of the longitudinal chamber walls.
Moreover the chamber 113 of Blandino, is reasonably interpreted as being defined by the cylindrical walls 115 and a bottom wall (composed of a wall of housing enclosing magnetic generator 120). Thus, sensor 126 is disposed on at least a portion of the outer surface of the chamber, as now recited by amended claims 1 and 11.
Fursa merely provides a motivation to position the sensor to a location away from the electromagnetic field. As correctly noted by Patent Owner on page 7 of the June 10 Remarks, “[w]hen combining Blandino and Fursa…Blandino’s sensor that disposed [sic] on the end portion of the heating zone 113 may be shielded from heating…”
Patent Owner argues that “because Frake uses a different heating mechanism (i.e. resistive heating) from those used by other references (i.e. inductive heating), a person skilled in the art would not combine Blandino and Fursa with Frake’s alleged sensor arrangement.” See page 9 of the June 10 Remarks. Patent Owner does not further expand or provide evidence why one of ordinary skill in the art would not look to Frake for a means to accurately control the heating of the aerosol generating article. Notably, Frake discloses multiple electrode arrangements including electrodes disposed exteriorly of the chamber containing the aerosol generating article. See for example Figure 12.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 2021/015161 to Moloney discloses an aerosol generating device that may use induction heating. A sensor, such as a capacitive sensor measures a moisture amount of the aerosol generating article. See paras [0030, 0032, 0046, 0052].
US 2021/0030059 to Moloney teaches an aerosol generating device including an inductive heater 204,224 and a sensor 432 located away from the heater, as shown in Figure 4. The description makes clear that heater 404 may be an induction heater and the sleeve may be comprised of a susceptor. See paras [0060, 0062, 0073, 0082].
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH L MCKANE whose telephone number is (571)272-1275. The examiner can normally be reached Mon-Thu 6:30a-4:30p EST.
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/ELIZABETH L MCKANE/Specialist, Art Unit 3991
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