DETAILED ACTION
Claim Objections
Claim 19 is objected to because of the following informality: “on” (Ln5) should be amended to read “at”. Appropriate correction is required.
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:
●first heating system (configured to heat) claims 1, 8, 15, 19
●second heating system (configured to heat) claims 9 and 19
●switch system (configured to be manipulated) claim 4
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
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.
Claim 19 is 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 19 recites the limitation "the second heating system" in line 15. There is insufficient antecedent basis for this limitation in the claim.
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 1-2, 4-5, 7-9, 12-15, and 18 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Huang (US 2016/0255878 A1).
Claim 1, Huang teaches an aerosol generation device (¶25 Lns1-2) comprising:
●a storage portion (comprising at least exhalation-and-air-intake path 130, vapor supply
channel 180, liquid container 140) configured to receive a consumable article (comprising at least a volume of liquid and/or a volume of air from outside) storing a vaporizable material (for example – nicotine and/or water vapor in the air), the storage portion extending along a device axis (vertical axis – Fig1 Fig2(a)) between open end (comprising at least outside access 123, one air-intake-and-exhalation channel 230) and a bottom end (at least at mesh 150) (¶5 ¶8 ¶11; ¶26 Lns12-37; ¶27 Lns1-7; ¶30 ¶34)
●a first heating system (comprising at least one heating element of a plurality of heating
elements 165) configured to heat at least partially the storage portion (portions of exhalation-and-air-intake path 130, vapor supply channel 180, liquid container 140) until at least a first temperature to form aerosol at the open end (at outside access 123) when the consumable article is received in the storage portion (¶26 Lns1-27)
●gas-sensing compartment 200, able to be in fluid communication with the storage
portion (for example – exhalation-and-air-intake path 130, vapor supply channel 180, liquid container 140) and comprising gas sensor 250 for sensing at least a gas (¶25 Lns1-9; ¶26 Ln24 through to end of ¶27).
In a vaping mode, the storage portion is configured to conduct a vaping flow (by way of vapor supply channel 180) from a vaping flow inlet (one of the air-intake-exhalation channels 230) to the open end (outside access 123) through the consumable article (¶26 Lns27-37).
In a sensing mode, the storage portion is configured to conduct an exhaled flow (by way of the exhalation-and-air-intake path 130) from open end 123 to gas-sensing compartment 200 (¶26 Lns27-37).
In the sensing mode, the storage portion (exhalation-and-air-intake path 130) is configured to conduct the exhaled flow when the storage portion
Other locations within reference may be included in the above recited locations (paragraphs, drawing, abstract, claims) to demonstrate further the features in the reference as claimed in the instant claims.
Claim 1, with respect to claimed first heating system, 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. The instant specification teaches a structure for the first heating system to perform the claimed function. Huang teaches a structure for the first heating system to perform the same claimed function. Huang is thus considered to meet this limitation of the claim.
Claim 2, Huang teaches sensing valve 150 arranged between the gas-sensing compartment 200 and the storage portion. Sensing valve 150 is movable between an open position in which the gas-sensing compartment 200 is in fluid communication with the storage portion (¶26 Lns27-37; ¶31) and so a closed position in which gas-sensing compartment 200 is isolated from the storage portion.
Claim 4, Huang teaches a control module (comprising at least control electronic 274 and PCB270) and a switch system (comprising at least, for example, rechargeable battery 310, power switch). The control module is configured to control the device between the sensing mode and the vaping mode (¶10; ¶27 Lns15-26). The switch system is configured to be manipulated by a user to command the control module (for example, user recharges battery 310 or removes-and-reinserts battery 310).
Claim 4, with respect to claimed switch system, 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. The instant specification teaches a structure for the switch system to perform the claimed function. Huang teaches a structure for the switch system to perform the same claimed function. Huang is thus considered to meet this limitation of the claim.
Claim 5, Huang teaches that the storage portion is configured to receive the consumable article
Claim 7, Huang teaches that the vaping flow inlet is arranged at the bottom end of the storage portion (Fig1 Fig3(a)).
Claim 8, Huang teaches that the first heating system is configured to heat the exhaled flow passing through the storage portion (by way of exhalation-and-air-intake path 130) in the sensing mode, until at least a second temperature (¶26 Lns27-37).
Claim 8, with respect to claimed first heating system, 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. The instant specification teaches a structure for the first heating system to perform the claimed function. Huang teaches a structure for the first heating system to perform the same claimed function. Huang is thus considered to meet this limitation of the claim.
Claim 9, Huang teaches a second heating system (comprising at least one heating element of a plurality of heating elements 165) configured to heat the exhaled flow (by way of exhalation-and-air-intake path 130) entering the gas-sensing compartment 200 in the sensing mode, until at least a second temperature (¶26 Lns27-37).
Claim 9, with respect to claimed second heating system, 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. The instant specification teaches a structure for the second heating system to perform the claimed function. Huang teaches a structure for the second heating system to perform the same claimed function. Huang is thus considered to meet this limitation of the claim.
Claims 12 and 14, Huang teaches that the gas sensed (isolated), from the exhaled flow, by gas sensor 250 may be carbon dioxide (¶8) – at a given temperature (second temperature) (¶26 Lns27-37).
Claim 13, Huang teaches a communication module (comprising at least a wireless transmission module) connected to gas sensor 250. Gas sensor 520 is configured to generate sensing data representative of the exhaled flow. The communication module is configured to transmit the sensing data to an external device (¶27 Lns33-43)
Claim 15, Huang teaches an aerosol generation assembly comprising (a) the aerosol generation device according to claim 1 (see discussion of claim 1 above); and (b) the consumable article configured to operate with the aerosol generation device.
Claim 15, with respect to claimed first heating system, 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. The instant specification teaches a structure for the first heating system to perform the claimed function. Huang teaches a structure for the first heating system to perform the same claimed function. Huang is thus considered to meet this limitation of the claim.
Claim 18, Huang teaches a power switch movable between two position – vaping position and sensing position (¶5 ¶10).
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.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Huang, as applied to claims 1-2, 4-5, 7-9, 12-15, and 18 above, and further in view of Yener (GB 2539055 A).
Claim 3, Huang does not teach a vaping valve arranged at the intake of vaping flow inlet 230 to be between the intake (outside) and the storage portion. However, it is conventional and well-known in the art to provide a vaping valve (to allow for air-control inward) at an intake of a vaping flow inlet to be between the intake (outside) and a storage portion – as demonstrated by Yener. Yener teaches electronic smoking device having vaping valve arranged at an intake of vaping flow inlet 38 to be between the intake (outside) and storage portion 14 (pg3 Lns4-17; pg5 Lns11-15). 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 Huang a vaping valve arranged at the intake of vaping flow inlet 230 to be between the intake (outside) and the storage portion as is conventional and well-known in the art, as demonstrated by Yener, where the valve allows for air-control inward. In Huang modified the vaping valve in necessarily movable between an open position (in which the vaping flow inlet 230 will be in fluid communication with the storage portion) to allow for inhalation and so a closed position in which vaping flow inlet 230 is sealed.
Claims 10 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Huang.
Claim 10, Huang teaches that the first heating system and/or the second heating system comprises hollow component 170 (outlet) – the exhaled flow flowing through hollow component 170 toward gas sensor 250 in the sensing mode (¶26 Ln24 to ¶27 L7). Huang does not teach a shape of component 170 (i.e. cylindrical). However, Huang teaches use of hollow circular component through with gas flow – for example, inhalation/exhalation access channel 120 (¶26 Lns1-12). 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 Huang that hollow component 170 is circular in that Huang teaches successfully using this shape for other gas flow channels within the device. Also, it has been held that changes in shape are a matter of choice which a person of ordinary skill in the art would have found obvious absent evidence of shape significance (MPEP 2144.04 (IV)(B)).
Claim 16, Huang does not teach a value for the second temperature (i.e. between 80°C and 100°C. Claim 17, Huang does not teach a value for the second temperature (i.e. substantially equal to 90°C).
With respect to the second temperature (or second temperature range), such temperature which one skilled in the art would consider providing is a function of, among other variables, the gas component(s) intended to be sensed, particular materials making up the device, pressures in different part of the device, and device length. Accordingly, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the invention, to have optimized second temperature (or second temperature range) which one skilled in the art would consider providing based on known variables, such as those listed for example; and thus, the claimed second temperature (or second temperature range) cannot be considered critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum and workable ranges by routine experimentation,” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 195). “It is a well settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same this as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results that prior inventions.” In re Williams, 36 F.2d 436, 438 (CCPA 1929). See MPEP 2144.05 II.A.
Allowable Subject Matter
Claim 11 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is an examiner’s statement of reasons for allowance: claim 11, the closest prior art of record to Huang, alone or in combination with the other prior art of record, does not teach or fairly suggest that hollow cylindrical component 170 comprises, radially, inwardly to outwardly, a polytetrafluoroethylene layer filled with a hydrocarbon filler, a copper layer, and a heater film in that the heating portions of the first and second heating systems comprise particularly placed heating elements 165 made of platinum in the process space 160 -- with component 170 acting as a mere inert conduit. The heating process of Huang is particularly designed with the heating elements 165 located in vaporization process space 160 next to valve 150 – which are both controlled by sensors (¶26 ¶31).
Claim 19 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action – and the objection overcome.
The following is an examiner’s statement of reasons for allowance: claim 19, the closest prior art of record to Huang, alone or in combination with the other prior art of record, does not teach or fairly suggest that hollow cylindrical component 170 comprises, radially, inwardly to outwardly, a polytetrafluoroethylene layer filled with a hydrocarbon filler, a copper layer, and a heater film in that the heating portions of the first and second heating systems comprise particularly placed heating elements 165 made of platinum in the process space 160 -- with component 170 acting as a mere inert conduit. The heating process of Huang is particularly designed with the heating elements 165 located in vaporization process space 160 next to valve 150 – which are both controlled by sensors (¶26 ¶31).
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
The amendments and comments filed 8-18-26 have been entered and fully considered.
Huang teaches a storage portion which receives a consumable article (comprising at least a volume of liquid and/or a volume of air from outside). The storage portion comprises at least exhalation-and-air-intake path 130, vapor supply channel 180, liquid container 140. Exhaled flow moves through the storage portion. When the storage portion is empty of – for example, liquid in container 140 in that it has been vaporized – the storage portion is still moving vaporized material (exhalation) through to the end of the device (to the user).
Huang specifically refers to item 150 as an actuation valve (¶26) which is opened to a desired position – indicating that the valve was not open at one point.
Huang teaches a power switch movable between two position – vaping position and sensing position (¶5 ¶10). Huang teaches a control module (comprising at least control electronic 274 and PCB270) and a switch system (comprising at least, for example, rechargeable battery 310, power switch). The control module is configured to control the device between the sensing mode and the vaping mode (¶10; ¶27 Lns15-26). The switch system is configured to be manipulated by a user to command the control module (for example, user recharges battery 310 or removes-and-reinserts battery 310).
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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/LINDA L GRAY/Primary Examiner, Art Unit 1745
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