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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 7/9/2026 has been entered.
Status of the Claims
Claims 1-20 are pending.
Claim 1 has been amended.
Claims 3, 7 and 16 have been withdrawn.
Information Disclosure Statement
The information disclosure statement filed 7/9/2026 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed.
There is no copy of the non-patent literature publication cited as “U.S. Application No. 19/564,677 filed March 12, 2026”.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 2, 4, 7-14 and 17-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 7, 9-13, 15, 16, 18 and 21 of U.S. Patent No. 18308170. Although the claims at issue are not identical, they are not patentably distinct from each other because
Claim 1 is rejected by claims 1, 7, 13, 15, 16 and 18 of U.S. Patent No. 18308170.
Claims 2 and 17 are rejected by claim 1 and 12 of U.S. Patent No. 18308170.
Claim 4 is rejected by claim 1 of U.S. Patent No. 18308170.
Claim 7 is rejected by claim 13 of U.S. Patent No. 18308170.
Claim 8 is rejected by claim 18 of U.S. Patent No. 18308170.
Claims 9 and 13 are rejected by claim 11 of U.S. Patent No. 18308170.
Claims 10, 11 and 18 are rejected by claims 1, 2 and 21 of U.S. Patent No. 18308170.
Claims 12 and 14 are rejected by claim 9 of U.S. Patent No. 18308170.
Claims 19 and 20 are rejected by claim 10 of U.S. Patent No. 18308170.
Claims 5, 6 and 15, respectively, are similarly rejected by virtue of dependency.
Allowable Subject Matter
The following is an examiner’s statement of reasons for allowable subject matter:
Applicant’s arguments, filed 7/9/2026, have been fully considered and are persuasive. The Applicant has amended claim 1 to include limitations that were not previously presented. Therefore, the rejection has been withdrawn.
No prior discloses the claimed cylindrical elements. Specifically, the prior art does not disclose that two cylindrical elements disposed at respective ends of the portion of the length of the capsule that contains the smoking material, such that a predefined quantity of smoking material is disposed between the two cylindrical elements, wherein the two cylindrical elements are disposed at the electrode locations.
The closest prior art of record is Fuisz (US 20220218023). Fuisz teaches an article (“botanical stick”, abstract) for use with a smoking device (“vaporizer”, abstract), the article comprising an elongated capsule (9) comprising: a smoking material containing one or more active agents, such as tobacco and nicotine, disposed along a portion of a length of the capsule ([0180]); a heating element disposed within the capsule ([0010]), the heating element (10) defining electrode locations (17, “contact ring”) at which the heating element is exposed (FIGS. 5 and 6, [0186] and [0199]); the heating element being configured to vaporize one or more of the active agents from within the smoking material, by the one or more heating elements being heated by the smoking device by supplying an electric current thereto via the electrode locations ([0199] and [0207]). Fuisz does not expressly teach (i) two cylindrical elements at respective ends of the length of the capsule that contains the smoking material, such that a predefined quantity of smoking material is disposed between the two cylindrical elements, or (ii) wherein the two cylindrical elements are disposed at the electrode locations.
Worm (US 20190289908) teaches an aerosol delivery device wherein it may be desirable to support the interior portion of the aerosol source member to prevent the aerosol source member from collapsing due to any outward pressure of the heating member exerted on the outside of the aerosol source member ([0058]).
Worm does not teach that (i) the supports are two cylindrical members at respective ends of the length of the capsule that contains the smoking material, such that a predefined quantity of smoking material is disposed between the two cylindrical elements, or (ii) or that they are disposed at the electrode locations.
Reevell teaches an aerosol-generating article for use with an aerosol-generating device, wherein the article has a capsule (“aerosol forming substrate”, abstract). Reevell teaches two cylindrical elements (“non-compressible elements”, 52 and 54 and page 11, lines 8-9) disposed at respective ends of a portion of the length of the capsule that contains the smoking material (10), such that a predefined quantity of smoking material is disposed between the two cylindrical elements (page 29, line 24- page 30, line 13 and 10, Fig. 11).
Reevell does not teach that the two cylindrical elements are disposed at the electrode locations.
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
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YANA B KRINKER whose telephone number is (571)270-7662. The examiner can normally be reached Monday, Wednesday, Thursday and Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at 571-270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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YANA B. KRINKER
Examiner
Art Unit 1755
/YANA B KRINKER/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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