DETAILED ACTION
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
●retaining portion claim(s) 1, 13, 16
●heating element claim(s) 1
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 2-3 and 22 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 2 recites the limitation "the power source" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Allowable Subject Matter
Claims 1 and 6-21 are allowed.
The following is a statement of reasons for the indication of allowable subject matter: claim 1, Lei teaches an aerosol provision system 1 (pg5 para2 Lns1-2) comprising:
●a cavity 131 (pg5 para4 Lns1-2; Fig3 Fig5 Fig6) configured to receive a consumable part 20 comprising a first reservoir (Lei refers to a “cavity”; pg6 para3 Lns1-4) for containing an aerosolizable material 230 (of tobacco juice) (pg1 para4; pg5 para 2 Lns1-5) for vaporizing (pg6 para3 Lns1-4); and comprises a first, closed, end (bottom of cavity 131; Fig5 Fig6); and comprises a second, open, end (top of cavity 131; Fig3) opposite the first end (Fig3 Fig5 Fig6), wherein the consumable part 20 is configured to at least partially project from the cavity 131 when the cavity 131 receives the consumable part 20 (pg5 para2 Lns3; pg5 para4 Lns1-2; Fig1 Fig3);
●a retaining portion (comprising at least annular magnetic bodies 14 and the inner walls of the cavity 131 inclusive of the sleeve 11), for gripping (holds the consumable 20 thereon by magnetic force using the magnetic bodies 14 – and holds the consumable part 20 by way of friction between any inside portion of the cavity 131 which contacts the consumable part 20) the consumable part 20 received in the aerosol provision system 1 (pg6 para2; pg5 para3), wherein the retaining portion at least partially extends around the cavity 131 (in that there are present two of the magnetic bodies 14 separate from each other at holes 1372 – and the inner walls of the cavity 131 inclusive of the sleeve 11) (pg5 para5 Lns1-2; Fig5 Fig6), wherein the retaining portion extend about a length direction of the cavity 131 (the length from one magnetic body 14 to the other magnetic body 14 defines a length direction of the cavity 131) (Fig5 Fig6); vertical length of the inner walls of the cavity 131 inclusive of the sleeve 11 – which extent between a first end and a second end of the consumable part 20 when the cavity 131 is receiving the consumable part 20), and wherein the retaining portion extends between the first and second ends of the cavity (i.e. the inner walls of the cavity 131 and the sleeve 11) (Fig3 Fig5 Fig6), wherein the retaining portion is configured to grip an outer surface of the consumable part 20 when the cavity 131 receives the consumable part 20 (by magnetic force gripping the bottom of the consumable part 20 and by frictional force gripping the outer walls of the consumable part 20);
●at least one air inlet 231 for delivering air into the aerosol provision system 1 (pg6 para3);
●a first channel 210 for receiving air from the at least one air inlet 231, wherein the first channel 210 is parallel to (parallel to support 13) (pg6 paras 2-3; Fig2 Fig5 Fig6), and is partially located outside of, the cavity 131 (see Figure 2 of Lei annotated below), and wherein the first channel 210 surrounds a portion of the cavity 131 (see Figure 2 of Lei annotated below); and
●a vaporizer (comprising at least atomizing assembly 22) for vaporizing the aerosolizable material 230 from the first reservoir, wherein the vaporizer comprises a heating element (comprising at least the heating body and the electrode 24) (pg6 para3)
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Lei does not teach that the cavity 131 and the consumable part 20 (inclusive of the first reservoir) are cylindrical. However, it has been held that a claimed configuration is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration claimed is significant (MPEP 2144.04 (IV)(B). Also, cylindrical cavities of an aerosol provision system, for receiving a cylindrical consumable part having an aerosolizable material therein, are conventional and well known in the art as demonstrated by Shinkawa. Shinkawa teaches an aerosol provision system 1 (pg16 Ln20) having a cylindrical cavity 10 (pg6 para5; Fig1) for receiving a cylindrical consumable part 20 having an aerosolizable material therein (pg6 para6 to pg7 para6; Fig1 Fig2 Fig3 Fig4). It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the invention, to have provided in Lei that the cavity 131 and the consumable part 20 are cylindrical in that it is obvious to replace one cavity and consumable part shape (that of Lei) with another art recognized alternative cavity and consumable part shape (that of Shinkawa – cylindrical) where successful use has been demonstrated. Claim 1, Lei alone -- or in combination with the other prior art of record -- does not teach or fairly suggest that in use air flows in a first direction along the first channel and vaporized aerosolizable material from the vaporizer flows in a second direction through the consumable part in the cavity, wherein the second direction is opposite to the first direction and wherein in combination with the vaporizer comprising a tubular portion and that the tubular portion surrounds the cavity. Lei indicates that the assembly comprises, for liquid conduction, a porous body and an upper surface exposed in the liquid storage cavity 230 (page 7, paragraph 56) such that liquid flows down the atomization assembly 22 but is not yet vaporized until it reaches the bottom atomization surface. Lei teaches, in paragraph 56, that the aerosolizable material is vaporized within the flow between a first air inlet 231 and a first air outlet 232 such that any vaporized material is immediately entrained within the flow of air channel 210 towards first air outlet 232. There is only a single direction of flow within air flow channel 210.
Conclusion
The amendments and comments filed 8-3-26 have been entered and fully considered – the results of which are provided herein.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LINDA GRAY whose telephone number is (571) 272-5778. The examiner can normally be reached Monday - Friday, 9 AM to 5:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Phil Tucker can be reached at (571) 272-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LINDA L GRAY/Primary Examiner, Art Unit 1745
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