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 .
Response to Amendment
The amendments entered on 8/4/2026 have been accepted. Claims 11, 14, 16-17, 19-21 are amended. Claims 12-13 and 15 are canceled. Claims 1-11, 14, 16-21 are pending, and claims 1-10 are withdrawn from consideration. Applicant’s amendments to the claims have overcome the 112(b) rejections previously set forth in the non-final office action mailed 5/7/2026. Applicant’s amendments to the claims have overcome the objections previously set forth.
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.
Claims 11, 14, 16-21 are rejected under 35 U.S.C. 103 as being unpatentable over Yamada (WO2021171459A1, citing to English Equivalent US2022/0346453A1, of record) in view of Reevell (US2021/0352966A1, of record) or Lee (US2020/0154765A1, of record).
Regarding claim 11, Yamada teaches an aerosol generating system (smoking system “100” as in Fig. 1 [0038], wherein the system forms aerosol [0125]), comprising:
an aerosol generating article (consumable “110” which includes a smokable substance [Fig. 1, 0038]),
an aerosol generating device (device “120” [Fig. 1, 0038]) comprising a heating structure configured to accommodate and heat the aerosol generating article (the device “120” comprises the heater assembly “30” [0040]. The heater assembly as in Fig. 1 clearly is configured to have the consumable “110” inserted into it, and so as to heat the consumable to form the aerosol [0039-0043]),
wherein the heating structure comprises:
a first body portion having a first length and a first cross-sectional shape (the heater assembly “30” includes the chamber “50” which is configured to receive the consumable “110” [0043]. Fig. 4 shows a cross-section of the chamber along the arrow 4-4 of Fig. 3 which is a perspective view of the chamber. An annotated Fig. 4 is shown below to facilitate discussion. The first body portion is considered to include the non-holding portion “54” and the first guide portion “58”. The first length is the dotted double-sided arrow as shown below),
a second body portion connected to the first body portion (the second body portion is considered the holding portion “60” as in the annotated Fig. 4 below) and having a second length and a second cross-sectional shape different from the first cross-sectional shape (the second length is identified by the solid double-sided arrow in the annotated Fig. 4 below, which is clearly different from the first length. And Figs. 5a-5b provide top-down cross-sectional views from the first portion and Fig. 5c provides a top-down view from the second portion, such that the cross-sectional shapes at these different body portions are clearly different),
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the first body portion comprises: a pair of first walls having a width therebetween in a first direction intersection with a first longitudinal direction of the first body portion; and a pair of second walls having a width therebetween in a first direction intersecting with a first longitudinal direction of the first body portion (Figs. 5A-5B provide a top-down view of the chamber at the non-holding portion “54” and the tapered guide portion “58”. The first longitudinal direction would be considered into/out of the page in Figs. 5A-5B. A first wall may be considered a top and bottom wall surface of Figs. 5a-5b, with a first width extending up/down between them and thus defining a first direction, and a second wall may be considered a right and left wall surface of Figs. 5a-5b, with a second width extending left/right between them and defining a second direction. It is noted that the opposite may also be true in terms of what is considered the first/second walls (such that the first walls may be right/left walls in Figs. 5a-5b for example), as no specific dimensional requirement are required between the pair of first walls and second walls. Regardless in either case the measured widths across the first walls/second walls would take place in first/second directions that would necessarily extend across the center of Figs. 5A-5B and thus intersect with each other, in the same manner as the instant Fig. 8),
the second body portion comprises: a pair of third walls connected to the first walls and having a width therebetween in the first direction intersecting with a second longitudinal direction of the second body portion; and a pair of fourth walls connected to the second walls and having a width therebetween in the second direction interesting with each of the second longitudinal direction of the second body portion and the first direction (Fig. 5c provides a top-down view of the chamber at the second body portion “60”. As first/second walls may be considered to be either top/down or right/left walls respectively in Figs. 5a-5b, the third/fourth walls may respectively be considered to be either the top/down or right/left walls dependent on which walls are considered to be the first/second walls, there being no specific width relationship requirements for the walls required. The second longitudinal direction would be considered to be in/out of the page of Fig. 5c, which would run along the length of the second body portion. The width in the first direction and the widths in the second direction would be either extending up/down or left/right in Fig. 5C dependent upon which walls are chosen, and it would necessarily be present that the associated widths would be interacting with the second longitudinal direction and the first direction).
Yamada does not explicitly disclose a protrusion protruding from the third wall of the second body portion. However, it is well known in the art of aerosol generating devices to have protrusions formed from the heating structure/receptacles to make contact with the articles. Reevell, for example, teaches an aerosol generating device “100” [Fig. 1-2]. A plurality of protrusions “140” are formed on the inner surface of the side wall of the heating chamber [0066, Fig. 2], wherein the heating chamber receives the aerosol substrate/article. The protrusions may be formed so as to be evenly spaced around the circumference of the heating chamber [see Fig. 2a which has 4 separated by 90deg, 0066, 0081]. One of ordinary skill in the art would have found it obvious to modify the third walls to have a protrusion as suggested by Reevell. One would have been motivated so as to improve engagement of the substrate carrier [0066], to increase the strength of the sidewalls and provide resistance to bending [0066], and improve heating [0068-0071]. And as the protrusions would be evenly spaced as suggested by Reevell, a protrusion would necessarily be on at least one of the third walls.
In the alternate, Lee teaches an aerosol generating device (title) which comprises a heating chamber for heating a cigarette (aerosol substrate) which is inserted into the chamber [see Figs. 2-3]. Protrusions “25” may be formed on this inner container and which face the outer surface of the cigarette/article “7” [0084, Fig. 3]. There may be 4 evenly spaced protrusions [Fig. 3, 5]. There may be a variety of different protrusion types and amounts scattered throughout the inner surface of the chamber [Fig. 6+]. One of ordinary skill in the art would have found it obvious to modify the third wall to have a protrusion as suggested by Lee. One would have been motivated so as to make insertion/removal of the cigarette easy to use and stable [0027, 0034], reducing the amount of conduction area [0028], and so as to improve potential cooling of the casing [0030]. Because the protrusions are evenly spaced and numerous as detailed above, a protrusion would necessarily be on at least one of the third walls.
Regarding claim 14, modified Yamada suggests an aerosol generating system wherein when the article is accommodated, the third walls are configured to form an airflow path with the article and the fourth walls are configured to press the aerosol generating article (as in Figs. 4 and 5c, the non-pressing unit “66” may have an air gap formed between the inner surface of “66” and the consumable [0051, Fig. 7B], and the pressing unit “62” may press a part of the unit [0045]. Therefore, the third wall may be considered to be “66” which has an air gap and the fourth walls may be considered to be “62”. Additionally, it is noted that with the protrusions of claim 11 above this behavior would not change. An airflow path would still be formed around “66”, especially around the protrusion that is formed, and the fourth wall would still be pressing down on the article at least at a protrusion if a protrusion is present).
Regarding claim 16, modified Yamada suggests an aerosol generating system wherein the first wall and the second wall forms the first cross-sectional shape that changes along the first length (see Fig. 4 and the change in cross-section from Fig. 5a to Fig. 5b, where both Figs. 5a and 5b are considered a part of the first body portion. The walls of the holder clearly change cross-sectional shape along the first length of the first body portion. The right/left walls as in Fig. 5b are tapered further inwards, such that the shape goes from a circular cross-section to a more ovular/elliptical shape).
Regarding claim 17, modified Yamada suggests an aerosol generating system wherein a variation in width in the first direction of the first wall in the longitudinal direction is smaller than a variation in width in the second direction of the second wall in the first longitudinal direction (As in Figs. 5a-5b, the first wall may be considered to be the top/bottom wall surfaces, and the second wall may be considered to be the right/left wall surfaces. Under this interpretation, the top wall portion width remains relatively constant while the right/left wall portion widths see a decrease in width because of the tapered surface "58a". Therefore, the variation in the second walls widths would clearly be greater than that of the first).
Regarding claim 18, modified Yamada suggests an aerosol generating system wherein the first cross-sectional shape changes from a substantially circular shape to a substantially elliptical shape along the first length (Fig. 5a is a view of the top of the first body portion, and it is clearly in a circular shape [0046]. And at the tapered portion of the first body portion, the shape changes to Fig. 5B, such that the walls are clearly in a substantially elliptical shape).
Regarding claim 19, modified Yamada suggests an aerosol generating system wherein the width between the third walls and the width between the fourth walls are substantially constant along the second length (See Figs. 3-4, wherein there is no change in widths of the chamber along the second length. The cross-section of this lower portion “60” is clearly substantially constant).
Regarding claim 20, modified Yamada suggests an aerosol generating system wherein the third wall has a substantially curved surface (the third wall may be considered to be the top/bottom wall surfaces “66” as in Fig. 5C of the second body portion. This surface is clearly a substantially curved surface).
Regarding claim 21, modified Yamada suggests an aerosol generating system wherein the fourth wall has a substantially flat surface (the fourth wall may be considered to be the right/left wall surfaces “62” as in Fig. 5C of the second body portion. These surfaces are clearly substantially flat).
Response to Arguments
Applicant’s arguments have been fully considered but they are not persuasive.
Applicant argues first on pg. 8 of their filed Remarks dated 8/4/2026 that the third wall forms an airflow passage and the fourth wall contacts the article.
The Examiner respectfully disagrees. The Examiner notes that these limitations are not present in the independent claim but are rather included in dependent claim 14. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). And regarding claim 14, as in Figs. 4 and 5c of Yamada, the non-pressing unit “66” may have an air gap formed between the inner surface of “66” and the consumable [0051, Fig. 7B], and the pressing unit “62” may press a part of the unit [0045]. Therefore, the third wall may be considered to be “66” which has an air gap and the fourth walls may be considered to be “62”. Additionally, it is noted that with the protrusions of Reevell/Lee these limitations would still be satisfied. An airflow path would still be formed around “66”, especially around any protrusion that is formed, and the fourth wall would still be pressing down on the article at least at a protrusion if a protrusion is present).
Applicant argues on pg. 9 that the protrusions of Reevell and Lee differ from the protrusions of the present application and that they cannot achieve the effects of the present application.
The Examiner respectfully disagrees. In response to applicant's argument that the prior art cannot achieve the effects of the present application, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). The modifications suggested of Yamada are reasonably suggested by Reevell/Lee, as will be detailed in further explanation below.
Applicant argues on pgs. 9-10 that Reevell does not include walls having different widths.
The Examiner respectfully disagrees. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). While Reevell does not explicitly show walls with different widths, it is noted that the combination of Yamada with Reevell discloses the non-circular cross-section. Additionally, it is noted that the claims do not require for the third and fourth walls to be different or for any specific relationship between these widths. It is merely required in the independent claim for the first cross-sectional shape and the second cross-sectional shape to be different. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). There are no limitations requiring for the width of the third wall to be larger than the width of the width of the fourth wall, for example.
Applicant argues on pgs. 9-10 that Reevell’s protrusions would be applied to the pressing portion which contacts and heats the consumable, which would result in loss of function.
The Examiner respectfully disagrees. Reevell’s protrusions are noted to provide numerous different benefits, in addition to any potential heating purposes. The protrusions are noted to improve the engagement of the substrate carrier and to increase the strength of the sidewalls [0066]. These benefits would be expected regardless of the specific shape of the holder as the general effects of improved strength would happen regardless. As noted in the rejection, the protrusions would be applied around the channel and not limited to a pressing portion. It being noted that the claims as written do not preclude the inclusion of protrusions on walls other than the third walls, and does not preclude the presence of airflow paths on the fourth walls, for example. And the inclusion of the protrusions would not prevent the intended purpose of Yamada, as the overall shape difference between the walls of the holding unit would ensure that the inserted article is arranged properly, as protrusions would not affect the overall dimensional differences between what are considered the third and fourth walls of Yamada which yield the overall effects of ensuring the article is properly inserted. Applicant further argues in this section that the combination would not achieve securing an airflow passage and aligning the article, but again it is noted that these are not aspects that are claimed in the independent claim.
Applicant argues on pg. 11 that Lee’s protrusions have different functions and effects from the protrusions of the present application. Applicant argues that the instant application protrusion has specific benefits of aligning the article.
In response to applicant's argument that the prior art cannot achieve the effects of the present application, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). And additionally, the features that Applicant is arguing is not present in the independent claim. There are no limitations tied to the aligning of an article, of specific dimensionality of the walls, etc., which are being argued by Applicant. For the limitations that are present in the claim (such as the presence of the protrusion on the third wall), Lee provides ample rationale for the modification of Yamada for its inclusion.
Additionally, it must be noted that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). The prior art, taken as a whole, readily suggests to the person of ordinary skill in the art a heating structure which comprises all of the claimed limitations. The presence of protrusions on a holder inner surface is well-known and understood in the art, for a variety of beneficial effects (as detailed both by Reevell and Lee in the rejections of record), including for the specific benefit of helping the alignment in the heating structure to the desired orientation (which is the same rationale applied in the instant application).
Applicant argues on pg. 11-12 that using Lee would be impermissible hindsight reconstruction.
The Examiner respectfully disagrees. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). As the modification in view of Lee provides specific rationale for making the modification which is present in the reference of Lee, the rejections are not considered to have used hindsight reconstruction.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/T.F.S./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
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