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 .
Information Disclosure Statement
The information disclosure statement (IDS) filed on 1/31/2024 has been considered by the Examiner.
Claim Objections
Claims 1, 3, 15 are objected to because of the following informalities:
Claim 1 line 11 should read “a width of the bore” because this was not previously introduced.
Claim 3 line 3 should read “…obstruct a full width of the bore”, because a full width of the bore was not previously introduced.
Claim 15 line 3 should read “…to a magnitude of the suction force”, because this was not previously introduced.
Appropriate correction is required.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the feature of one baffle obstructing more than half of the bore and the other baffle obstructing less than half of the bore (as required in claim 8) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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 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.
7. Figures: The examiner provides illustrations from the prior art with additional annotations as needed to facilitate discussion of the claim elements. Moreover, it is held that guidance as provided by the figures is sufficient to enable public possession of an inventive concept. That is, an enabling picture may be used to reject claims directed to an article to include: anticipating claims if they clearly show the structure which is claimed. In re Mraz, 455 F.2d 1069, 173 USPQ 25 (CCPA 1972). And when the reference is a utility patent, it does not matter that the feature shown is unintended or unexplained in the specification. The drawings must be evaluated for what they reasonably disclose and suggest to one of ordinary skill in the art. In re Aslanian, 590 F.2d 911, 200 USPQ 500 (CCPA 1979), see MPEP 2125.
Claims 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Leadley (US2019/0083720A1) in view of at least one of Murray (EP3692836A1) or Moloney (US2023/0172279A1).
Regarding claim 1, Leadley teaches a vapor generating device (vapor provision apparatus [title]) comprising:
A tubular body comprising a bore and having a longitudinal axis (see Figs. 10a-10b, wherein the apparatus’s main body portion is considered to be the tubular body. There is formed in this an air channel wall 432 which defines the air channel 433, where the air channel is formed between the vapor generation chamber 465 and the vapor outer 280 where the vapor exits the device [0074, Figs. 10a-10b]. The axis along the extending length of this air channel is considered the longitudinal axis, up/down in Figs. 10a-10b),
A heater arranged to vaporize a liquid (in the atomizer chamber 465, there is provided a heater 450 positioned on the wick 440 which vaporizes liquid introduced into the atomizer chamber [0040]),
A mouthpiece located at an end of the bore and configured for a user to apply a suction force to draw the vaporized liquid along the bore from the heater to the mouthpiece (the mouthpiece may be considered to be the portion of the device surrounding the vapor outer/mouthpiece exit hole 280 on the mouthpiece end 250 of the system [0041-0042]. This is clearly located at the end of the air channel portion. Arrows are shown in Figs. 10a-10b to show the path of the vapor, wherein the vapor generated by the atomization 465 moves through the air channel 432 and exits the device through the mouthpiece outlet 280. As the user inhales vapor through the mouthpiece in operation of the device [abstract, 0032], there is clearly applied a suction force which draws the vaporized liquid along these indicated arrow paths),
First and second baffles located in the bore between the heater and the mouthpiece, the first and second baffles being staggered apart from each other around the longitudinal axis and staggered along the longitudinal axis (Figs. 12a-12b provide a view of protrusions that are formed on the air channel wall surface. The plurality of protrusions 760 are considered the baffles. An annotated Fig. 12 from Leadley is included below to facilitate discussion. The first baffle may be considered to be one of the protrusions located on one wall surface, while the second baffle may be considered to be one of the protrusions located 180deg apart on the opposite side of the bore. In this manner, the first/second baffles were clearly be considered to be staggered apparat from each both around and along the longitudinal axis. The presence of these baffles causes turbulence of the air flow [0082-0083]).
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Leadley does not explicitly state that the protrusions are movable by suction force to obstruct the width of the bore. However, Leadley does suggest that many other modifications may be made to the protrusions [0089, 0093], and it is known in the art to provide baffles which move under force of suction to change position. Murray, for example, teaches an apparatus for generating aerosol [title, Fig. 1]. There is included a valve for controlling aerosol flow amounts through the outlet of the device towards the mouthpiece [abstract]. Figs. 4a-4b show an embodiment wherein the valve is situated to be hingeably mounted to walls of the vapor outlet pipe [pgs. 5, 11-12 of machine translation], such that the valve may impede or partially block the flow of air akin to the protrusions/baffles of Leadley. The valve is configured to rotate between a first and second position, in response to an airflow in the passage. In other words, the valve may change its position from the first to second position based upon a predetermined pressure in the channel, such that this occurs by a user inhaling at the outlet [pgs. 5, 11-12 of machine translation]. The valve may be configured to move in response to the magnitude of an inhale (e.g. flow rate drawn from outlet) by a user at the outlet [pg. 5 of machine translation].
One of ordinary skill in the art would have found it obvious to modify the protrusions of Leadley so as to be movable under suction so as to move between a first and second position to partially obstruct air flow as suggested by Murray. One would have been motivated so as to control the amount of obstruction through the channel during inhalation and so as to have no obstructions when there is no inhalation [pg. 5, 10-11 of machine translation]. One would have found it obvious to utilize this alternative arrangement as suggested by Murray to allow for the modification in obstructions during use, and one would have found the teachings of Murray applicable because both are tied to the art of aerosol generating device with structures in the outlet vapor channels to obstruct/change the flow thereof. When Leadley is modified by Murray, the protrusions of Leadley would clearly be movable by suction force to obstruct the width of the bore. As indicated in Leadley Fig. 12b, the airflow clearly undergoes a tortous path as a result of the protrusions being present, and although not explicitly stated, the presence of the protrusions would clearly block the passage of drops of liquid to the mouthpiece because these are solid structures that extend out in the same manner of the instant application, such that similar results would be apparent.
Further regarding claim 1, Moloney is tied to an electronic aerosol delivery device [0054], wherein the device includes an aerosol generating component 365 and mouthpiece 35 where the aerosol enters the user [Fig. 3]. Moloney teaches that movable features such as baffles may be included in the air flow path to the mouthpiece [0054]. Moveable baffles may be “moved into different positions to adjust the manner in which incident air impinges… when a user draws on the device [0054, 0078]. In other words, Moloney is suggesting that the movement in the baffle occurs while the user is creating suction force, such that the baffles would be movable via suction.
One of ordinary skill in the art would have found it obvious to modify the protrusions of Leadley so as to be movable baffles by suction as suggested by Moloney. One would have been motivated so as to properly set the turbulence of the airflow path, direction of airflow, condensation pathway to the mouthpiece, as well as ensuring the particle size of the aerosol provided by the device [0054, 0078]. When Leadley is modified by Moloney, the protrusions would clearly go undergo a tortous path as a result of the protrusions being present (see Fig. 12b of Leadley, and 0054 and 0078 of Moloney). And as stated by Moloney, the presence of the movable baffles allows for control of the condensation rate via blockage of the liquid to the mouthpiece [0054, 0078], such that the combination would clearly also block large droplets from leaving the mouthpiece.
Regarding claim 2, modified Leadley makes obvious a device wherein the first/second baffles are staggered apart on opposite sides of the bore (see annotated Fig. 12b of Leadley above, wherein the baffles which are identified as the first and second are clearly located 180 degrees from each other on opposite sides of the longitudinal axis).
Regarding claim 3, modified Leadley makes obvious a device wherein the first and second baffles are movable such that in combination they obstruct a full width of the bore so as to preclude a direct line of sight along the bore between the mouthpiece and the heater (Leadley suggests that the protrusions may extend from the wall 832 to the center of the air channel such that the protrusions on one side of the air channel overlaps with protrusions on the other side of the air channel [0087-0088]. In such cases, the full width of the bore would clearly be obstructed).
Regarding claim 4, modified Leadley makes obvious a device wherein each of the first/second baffles is movable to obstruct half of the width of the bore (Leadley suggests that each of protrusions, which are located on opposite sides of the bore, may extend from the wall surface towards the center by a distance of at least 50%, 60%, 70%, etc. [0087-0088]. In other words, it is suggested that the protrusions may be made to obstruct half or more of the width of the bore. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Regarding claims 5-6, modified Leadley makes obvious a device wherein at least one or both of the baffles is movable to obstruct more than half of the bore (Leadley suggests that each of protrusions, which are located on opposite sides of the bore, may extend from the wall surface towards the center by a distance of at least 50%, 60%, 70%, etc. [0087-0088]. In other words, it is suggested that the protrusions may be made to obstruct half or more of the width of the bore. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Regarding claim 7, modified Leadley makes obvious a device wherein the first/second baffles are movable so that in combination they obstruct less than the full width of the bore so as to allow a direct line of sight (see Figs. 12a-12b of Leadley, wherein the protrusions clearly do not extend the full width of the bore and a clear line of sight is seen in the center thereof. The drawings must be evaluated for what they reasonably disclose and suggest to one of ordinary skill in the art. In re Aslanian, 590 F.2d 911, 200 USPQ 500 (CCPA 1979), see MPEP 2125)).
Regarding claim 8, modified Leadley makes obvious a device wherein one of the baffles obstructs more than half of the width and the other obstructs less than half (Leadley Figs. 12a-12b clearly suggests that a protrusion may individually extend less than half of the width of the bore. Leadley suggests that a wide variety of potential extensions of the protrusions, such that a protrusion may extend from the wall surface towards the center by a distance of at least 50%, 60%, 70%, etc. [0087-0088]. Leadley does not require for the protrusions to be the same size and suggests that a variety of sizes may be utilized [0089]. Therefore, it would have been obvious for the person of ordinary skill in the art to work within the potential length suggestions of Leadley, and one would have landed upon having one protrusion obstructing more than half of the width while the other obstructs less than half of the width. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Additionally, Applicant has not demonstrated criticality or unexpected results for this combination. It has been held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device (In Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984) cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)).
Regarding claim 9, modified Leadley makes obvious a device wherein each of the baffles obstructs less than half of the width of the bore (Leadley suggests that each of protrusions, which are located on opposite sides of the bore, may extend from the wall surface towards the center by a distance of at least 50% from the wall to the center of the bore [0087-0088]. In other words, it is reasonably suggested that each of the protrusions may have extensions that are less than half of the width of the bore. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Regarding claim 10, modified Leadley makes obvious a device wherein the baffles are hingedly connected to an interior wall of the tubular body (as noted in the rejection of claim 1, Murray suggests as in Figs. 4a-4b that the baffles may be attached to the inner wall of the air channel via a hinge, wherein the hinge allows for the transition between the two positions).
Regarding claim 11, modified Leadley makes obvious a device wherein each of the baffles is a generally rigid panel comprising a thinned flexible portion forming the hinged connection (it is noted that “generally rigid” and “thinned flexible” are given their broadest reasonable interpretation as the specification does not specifically define these terms or give these special definitions. It is considered that the baffles would reasonable be considered “generally rigid” as they would necessarily possess some amount of rigidity to them so as to maintain their positions as the suction force travels over them so as to form the turbulent airflows. And the hinged portion as suggested by Murray [Figs. 4a-4b, pg. 5, 10-11 of machine translation] is clearly thinner than the surrounding tube and channel, it may be considered that this is “thinned’ under the broadest reasonable interpretation thereof. Further, it has been held that a mere change in shape of an element is generally recognized as being within the level of ordinary skill in art when the change in shape is not significant to the function of the combination. MPEP 2144.04. Applicant has not assigned any importance to the thinned shape. And regarding flexible, the hinged portion of Murray would clearly be flexible as the hinge allows for the transition between a first portion and second position depending on the airflow).
Regarding claim 12, modified Leadley makes obvious the device wherein the interior wall comprises first and second recesses accommodating the baffles, such that the width of the bore is unobstructed by the baffles (see Murray Figs. 4a-4b, wherein the baffle/hinge are implanted into the interior wall of the air channel, such that there would necessarily be respective first/second recesses for the first/second baffles that are utilized. When the baffle is in the first position, the width of the bore is unobstructed, while also allowing while also allowing for the suction force to move the baffle into the second position [see Figs. 4a-4b of Murray], such that the combination reasonably suggests the claimed limitations. Additionally, it is noted that Fig. 1C of Murray provides a view wherein the baffle/protrusion is entirely recessed into the interior wall thereof so as to provide unobstructed airflow through the air channel [pg. 10 of machine translation of Murray]. It would have been obvious to apply this recess and unobstructed air channel of Fig. 1C of Murray to that of Figs. 4a-4b of Murray and that of Leadley, so as to allow for a completely unobstructed air channel when suction was not occurring [pg. 10 of machine translation]).
Regarding claim 13, modified Leadley makes obvious a device wherein the heater is located in the bore (see Fig. 10a-10b of Leadley, wherein the heater coil is located at an inner section of the air channel, such that this is considered to be in the bore).
Regarding claim 14, modified Leadley makes obvious a device wherein the tubular body comprises a reservoir for storing the liquid (chamber 270 for storing a reservoir of liquid, where the liquid is used in vaporization [0022]).
Regarding claim 15, modified Leadley makes obvious a device wherein the degree of movement of the first/second baffles is proportional to a magnitude of suction force (Murray suggests that the valve may be configured to move in response to the magnitude of an inhale (e.g. flow rate drawn from outlet) by a user at the outlet [pg. 5 of machine translation]. And when in view of either Murray or Moloney, because it is suggested that the baffles are movable by a suction of the user, it would reasonably be suggested that the movement would be directly proportional to the magnitude of such a force, as there would clearly be less movement when less force applied (and the opposite true as well)).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US2012/0186594 – Air baffle that deforms in response to air flow through it.
US2022/0030952 – Turbulence inducing element downstream of the vaporizer to break up large droplets.
US2022/0218022 – Baffle downstream of vaporizer so as to bifurcate the airflow path.
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/T.F.S./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
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