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 .
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description:
“210”, described as an aerosol generating device in the specification at p. 18 l. 33 with reference to Fig. 9;
“75”, described as a distal wall in the specification at p. 12 l. 32 with reference to Figs. 5-7.
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. 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.
Claim Objections
Claim 1 is objected to because it recites at l. 9-10 “a respective one of the at least first and second heating wall of the heating chamber”, which appears to be a typo of “a respective one of the at least first and second heating walls of the heating chamber”. Appropriate correction is required.
Claim Interpretation
Claim 1 recites an aerosol generating device “configured to operate with an aerosol generating substrate with a heater part”. The “aerosol generating substrate” and its sub-components such as the “heater part” are not positively recited components of the claimed device. Therefore, for purposes of this office action, in claims 1-15, the recited “aerosol generating substrate” and its sub-components such as the “heater part” and “external surface” are considered to have patentable weight only to the extent they dictate the structure of the claimed device. See MPEP 2115; see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).
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 9-10 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.
The term “tight” in claim 9 is a relative term which renders the claim indefinite. The term “tight” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Thus, the claim scope set forth by “wherein each of the first and second heating walls defines a contact surface configured to be in a tight contact with an external surface of the aerosol generating substrate when the aerosol generating substrate is inserted into the heating chamber” is unclear. The specification at p. 13 explains that “the chamber contact walls 74A, 74B and notably their contact surfaces, are in a tight contact with the substrate contact walls 14A, 14B. In some embodiments, the depth D3 of the heating chamber 45 can be even slightly less than the normal depth D of the aerosol generating substrate 12. In this case, the heating chamber 45 and/or the mouthpiece 32 is(are) configured to compress the heater part 15 of the aerosol generating substrate 12 by exerting force on the substrate contact walls 14A, 14B. This makes it possible to improve the tight contact between the corresponding contact walls of the heating chamber 45 and the substrate 12 and thus, to improve heat transfer between these walls.” However, this description does not provide any clearer boundaries on the scope of “tight” contact in claim 9. For purposes of this office action, claim 9 is interpreted as reciting “wherein each of the first and second heating walls defines a contact surface configured to be in a .
Claim 10 is rejected due to its dependency on claim 9.
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, 6-7, 9-11, and 13-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lavanchy (WO 2020/115150 A1, provided in IDS dated 11/06/2023).
Regarding claim 1, Lavanchy is directed to an aerosol-generating article and device (p.1 l. 3-4), the device reading on an “aerosol generating device” as claimed, and the article reading on the recited “substrate”:
As shown in Fig. 1, the device 14 includes a housing (“device body”) extending along an axis (p. 18 l. 17);
The device 14 includes a heating chamber 12 (“heating chamber”) with an open end for receiving the article 10 and its heating area 32 (“heating part”) (p. 20 l. 10-15, p. 21 l. 1-5, Fig. 1). The chamber 12 may have a rectangular cross-section surrounding the heating area 32 (and thus the chamber 12 includes “first and second heating walls” as claimed) (p. 13 l. 11-25, p. 16 l. 7-20, p. 21 l. 1-14, Fig. 1);
The device 14 includes a heating element 30 surrounding the chamber 12 and heating area 32 (p. 20 l. 35-p. 21 l. 17, Fig. 1) (and thus the heating element 30 includes “first and second heating elements” which are “adjacent and parallel” to the “first and second heating walls” of the chamber 12, as shown in Fig. 1);
The device 14 includes electric circuitry 36 (“controller”) which may separately control radial portions of the heating element 30 (p. 17 l. 21-35) and supply them with electrical energy, and which may include a controller (p. 18 l. 20-28, p. 21 l. 28-30, Fig. 1) (which reads on “configured to operate separately each of the first and second heating elements with the same aerosol generating substrate”). Lavanchy discloses that a temperature of 150-200 °C may be sufficient for the article 10 (p. 9 l. 16-23), that the heating element 30 may be used to both heat and monitor at a temperature of around 200 °C (p. 17 l. 1-3), and that the circuitry 36 may control the supply of power dependent on the electrical resistance of the heating element 30 (p. 18 l. 26-28) (which reads on a ”heating profile chosen among a predetermined group of heating profiles”).
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Regarding claim 6, the heating chamber 12 extends “along the device axis” as shown in Fig. 1. The chamber 12 may have a rectangular cross-section as set forth above in the discussion of claim 1, and thus has top and bottom walls (“first and second chamber lateral walls”), as well as side walls (“third and fourth walls” which are the “first and second heating walls” as set forth above).
Regarding claim 7, the heating chamber 12 having the rectangular cross-section allows insertion of the article 10 only in particular orientations (p. 13 l. 11-25, p. 16 l. 7-20), and thus the four walls defining the rectangular cross-section are not flexible, but are “rigidly fixed” to one another as claimed.
Regarding claim 9, the heating chamber 12 having the rectangular cross-section allows insertion of the article 10 only in particular orientations (p. 13 l. 11-25, p. 16 l. 7-20), and Fig. 1 shows the chamber 12 walls surrounding the heating area 32 to be in direct contact with the article 10, and thus the walls are in “contact with an external surface” of the article 10 as claimed (Lavanchy’s disclosure would presumably read on any variation of a claimed “tight contact” as well).
Regarding claims 10 and 13, the heating element 30 portions may be arranged surrounding some or all of the chamber 12 (p. 16 l. 21-35, p. 20 l. 35-p. 21 l. 17, Fig. 1), which reads on them being “attached to an outer surface” of the chamber 12 walls as claimed.
Regarding claim 11, Lavanchy does not explicitly disclose whether a gap is formed between the inserted article 10 and the top and bottom walls of the chamber 12. However, the top and bottom walls are nevertheless “configured to be spaced out” from the exterior of the article 10 as claimed (and any prior art lateral walls would be configured as such), because such spacing is dependent on the size of the article 10 which forms no part of the claimed device (see Claim Interpretation above). For instance, if an appropriately small article 10 were inserted into the chamber 12, a gap would exist between the article 10 and the top and bottom walls.
Regarding claim 14, the heating element 30 portions may be heating foils on a dielectric substrate such as polyimide (p. 16 l. 26-30), which reads on a “polyimide film heater”.
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.
Claims 2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Lavanchy (WO 2020/115150 A1) as applied to claim 1.
Regarding claim 2, Lavanchy discloses the electric circuitry 36 which includes a controller and controls the supply of power to the heating element 30 to provide a heating temperature of about 200 °C (p. 17 l. 1-3, p. 18 l. 20-28), which reads on “a first heating profile comprising activation of both of the first and second heating elements until reaching a first target temperature”. Lavanchy fails to specifically disclose “a second heating profile comprising activation of one of the first and second heating elements until reaching a second target temperature.” However, Lavanchy discloses controlling the radial portions of the heating element 30 separately in order to heat specific areas of the article 10 (p. 17 l. 21-24, 30-31). Therefore, it would be obvious to configure the electric circuitry 36 to supply power to only one portion of the heating element 30 (see Fig. 1 showing left and right radial portions) to reach a temperature of about 200 °C, which reads on the “second heating profile” as claimed (the Examiner notes that nothing in the claim language requires the “first target temperature” and the “second target temperature” to be different).
Regarding claim 4, Lavanchy discloses and renders obvious the claimed first and second heating profiles, each having a target temperature of 200 °C, as set forth above in the discussion of claim 2, which reads on “wherein the first target temperature and the second target temperature are equal to a same value” per claim 4, but which fails to read on “said value being between 230 °C and 350 °C.” Lavanchy further discloses that a temperature of 150-200 °C may be sufficient for the article 10, and that devices using tobacco cast leave sheets typically employ temperatures of about 250 °C (p. 9 l. 19-23), which reads on the claimed range. Therefore, it would be obvious to configure Lavanchy’s electric circuitry 36 to control the supply of power to the heating element 30 to reach a temperature of about 250 °C, for instance when the article 10 includes or is replaced with tobacco cast leave sheets.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Lavanchy (WO 2020/115150 A1) as applied to claim 2, in view of Park (US 2022/0408804 A1).
Lavanchy discloses and renders obvious the claimed first and second heating profiles as set forth above in the discussion of claim 2. However, Lavanchy discloses neither operation modes nor preheating and thus fails to disclose the electric circuitry 36 being “configured to choose the first heating profile during a pre-heating mode of operation of the device and the second heating profile during a floating mode of operation of the device.”
Park is directed to an aerosol generating device for discharging vapor that is visually different according to mode (Title). The device discharges visible vapor in a first smoking mode and invisible vapor in a second smoking mode (Abstract), which advantageously gives a user more control over the type of vapor discharged [0008]. The device includes a first and second cartridge with first and second materials and first and second heaters [0005]. In the second smoking mode, the first material is heated but not the second [0005] (which reads on “wherein the controller is configured to choose…the second heating profile during a floating mode of operation of the device”). Park further discloses a controller 16000 setting a device heater 12000 to a pre-heating mode after receiving a user input [0051] (which reads on “wherein the controller is configured to choose the first heating profile during a pre-heating mode of operation of the device”). One of ordinary skill in the art would recognize that Lavanchy’s electric circuitry 36 and heating element 30 could similarly be configured to carry out Park’s pre-heating mode upon user input as well as the second smoking mode wherein one radial portion of Lavanchy’s heating element 30 would be activated but not the other, in order to give a user more control over the device operation and type of vapor discharged.
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Lavanchy by configuring the electric circuitry 36 and heating element 30 to carry out Park’s pre-heating mode and second smoking mode, because Lavanchy and Park are both directed to aerosol generating devices, Park teaches that this provides more user control, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Lavanchy (WO 2020/115150 A1) as applied to claim 2, in view of Gomez (US 2019/0159517 A1).
Lavanchy renders obvious the “second heating profile” of claim 2 as set forth above, but fails to specifically disclose the electric circuitry 36 being configured to carry out a particular heating profile “after having carried out the second heating profile”. However, it would be obvious to carry out any one of the heating profiles of claim 5 in view of Lavanchy and Gomez as follows:
Lavanchy discloses controlling the radial portions of the heating element 30 separately in order to heat specific areas of the article 10 (p. 17 l. 21-24, 30-31). Therefore, it would be obvious to separately control one radial portion of the heating element 30 after controlling the other portion, which reads on “a fourth heating profile comprising deactivation of the one of the first and second heating elements used in the second heating profile, and activation of the other of the first and second heating elements” performed “after having carried out the second heating profile”.
Lavanchy discloses controlling the supply of power to the heating element 30 to provide a heating temperature of about 200 °C (p. 17 l. 1-3, p. 18 l. 20-28), which reads on “a fifth heating profile comprising activation of the first and second two heating elements”. It would be a simple design choice for one of ordinary skill in the art to configure the electric circuitry 36 and heating element 30 to perform such heating “after having carried out the second heating profile” wherein one portion of the heating element 30 is separately heated.
Lavanchy discloses the power supply may store enough energy for one or more usage experiences, such as continuous aerosol generation for around six minutes (p. 18 l. 29-35). Thus, Lavanchy’s circuitry 36 is configured to supply no power to the heating element 30 after a period of operation, which reads on “a sixth heating profile comprising deactivation of each of the first and second heating elements” performed “after having carried out the second heating profile”.
Lavanchy fails to disclose operating a portion of the heating element 30 at an additional and higher temperature and thus fails to disclose “a third heating profile comprising activation of the one of the first and second heating elements used in the second heating profile to achieve a third target temperature which is higher than the second target temperature”.
Gomez is directed to a method of generating aerosol (Title). The method involves heating a first and second portion of an aerosol-generating substrate with different temperature profiles, which advantageously allows for both fast aerosol production and longevity of use [0005, 0023]. Gomez discloses an example wherein two heating elements are independently controlled such that the first heating element is immediately heated to a temperature of 240 °C, then the second heating element is heated to a temperature of 160 °C (which reads on the “second heating profile” per claim 2), and then the second heating element is heated to a temperature of 240 °C (which reads on the “third heating profile” of claim 5 performed “after having carried out the second heating profile”) ([0102], Figs. 2-3). One of ordinary skill in the art would recognize that Lavanchy’s radial portions of the heating element 30 could similarly be controlled to advantageously allow for both fast aerosol production and longevity of use.
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Lavanchy by configuring the electric circuitry 36 to carry out Gomez’ heating procedure wherein one radial portion of Lavanchy’s heating element 30 is heated to a temperature of 240 °C, then the other portion is heated to 160 °C, and then further heated to 240 °C, because Lavanchy and Gomez are directed to devices and methods for aerosol generation, Gomez teaches that this advantageously allows for both fast aerosol production and longevity of use, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Claims 8, 12, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Lavanchy (WO 2020/115150 A1) as applied to claims 1 and 6, in view of Blandino (US 2017/0119050 A1).
Regarding claim 8, Lavanchy discloses the device of claim 6 as set forth above. Lavanchy discloses various article 10 cross-sections and dimensions, and corresponding device 14 cross-sections, such as rectangular cross-sections (p. 11 l. 14-35, p. 12 l. 19-p. 13 l. 28, p. 16 l. 7-20), but fails to disclose “wherein each of the first and second heating walls is at least 3 times wider than each of the first and second chamber lateral walls”.
Blandino is directed to an article for use with an apparatus for heating smokable material (Title). The article 3 is inserted between first and second bodies 111, 112 with heaters 110a, b forming a heating zone 114 ([0113-0114, 0117, 0124], Figs. 6-8). The article 3 may have a depth D less than a quarter of its width W [0100] (i.e., the width W is greater than four times the depth D), and the heating zone 114 may be similarly sized ([0125], Fig. 8), meaning that the width of the bodies 111, 112 is greater than four times the depth of the heating zone 114. This flat profile advantageously prevents damage to the article 3 from movement and ensures the article 3 is well-heated with high thermal conductivity [0111, 0125]. One of ordinary skill in the art would recognize that Lavanchy’s article 10 and chamber 12 could similarly be shaped with a flat profile to advantageously ensure high thermal conductivity.
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Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Lavanchy’s article 10 and chamber 12 walls adjacent to the heating element 30 such that they have a flat profile with width greater than four times the depth of the top and bottom article 10/chamber 12 walls, because both Lavanchy and Blandino are directed to aerosol generating articles and apparatuses, Blandino teaches that this advantageously ensures high thermal conductivity, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Regarding claim 12, Lavanchy discloses the device of claim 1, but fails to disclose “wherein the heating chamber is configured to compress the heater part of the aerosol generating substrate when the heater part is received in the heating chamber”.
Blandino is directed to an article for use with an apparatus for heating smokable material (Title). The article 3 is inserted between first and second bodies 111, 112 with heaters 110a, b forming a heating zone 114 ([0113-0114, 0117, 0124], Figs. 6-8). The first and second bodies 111, 112 may be moveable relative to one another to compress the heating zone 114 and article 3 therein [0114-0115]. This advantageously increases the thermal conductivity of the smokable material 10 within the article [0115]. One of ordinary skill in the art would recognize that Lavanchy’s chamber 12 could similarly be configured to compress the heating area 32 of the article 10 when inserted and improve thermal conductivity.
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Lavanchy’s chamber 12 such that the walls surrounding the heating area 32 are movable relative to one another in order to compress the heating area 32 of the article 10 when inserted (which reads on the claim language), because both Lavanchy and Blandino are directed to aerosol generating articles and apparatuses, Blandino teaches that this advantageously increases thermal conductivity, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Regarding claim 15, Lavanchy discloses the device of claim 1 as set forth above. Lavanchy discloses a heat insulating layer 24 on the article 10 (p. 20 l. 16-22), but fails to disclose the device 14 including “an insulator arranged between an outer surface of the heating chamber and an inner surface of the device body”.
Blandino is directed to an article for use with an apparatus for heating smokable material (Title). The article 3 is inserted between first and second bodies 111, 112 with heaters 110a, b forming a heating zone 114 ([0113-0114, 0117, 0124], Figs. 6-8). Thermal insulation 115 (“insulator”) is located between the second body 112 and a third body 113 outside the heating zone 114 ([0131], Fig. 8). The thermal insulation 115 helps prevent heat loss from the heating zone 114 to electrical components of the apparatus 200, and provides more efficient heating of the smokable material 10 within the heating zone 114 [0131]. One of ordinary skill in the art would recognize that Lavanchy would similarly benefit from thermal insulation 115 located around the heating chamber 12.
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Lavanchy by incorporating Blandino’s thermal insulation 115 around the exterior of Lavanchy’s heating chamber 12, because both Lavanchy and Blandino are directed to aerosol generating articles and apparatuses, Blandino teaches that this prevents heat loss and provides more efficient heating, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL PATRICK MULLEN whose telephone number is (571)272-2373. The examiner can normally be reached M-F 10-7 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H. Wilson can be reached at (571) 270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL PATRICK MULLEN/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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