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 .
Status of the Claims
Claims 1-23 are pending and are subject to this Office Action. Claims 1-20 have been amended. Claims 21-23 are newly added.
Response to Amendment
The Examiner acknowledges Applicant’s response filed on 12/16/2025 containing
amendments and remarks to the claims.
Terminal Disclaimer
The terminal disclaimer filed on 12/16/2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of copending Applications 18/312,066; 18/307,516; 18/307,534; 18/308,162; 18/308,173; 18/211,849; 18/312,058; 18/312,061; 18/312,063; and 18/312,070 has been reviewed and is accepted. The terminal disclaimer has been recorded.
The rejection of claims 1-20 on the ground of non-statutory double patenting have therefore been withdrawn.
Election/Restrictions
Newly submitted claim 23 is directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-22, drawn to an article for use with a smoking device, classified in A24D1/20.
II. Claim 23, drawn to a method of manufacture of a capsule for use with a smoking device, classified in A24F40/70.
Inventions I and II are related as process of making and product made. The inventions are distinct if either or both of the following can be shown: (1) that the process as claimed can be used to make another and materially different product or (2) that the product as claimed can be made by another and materially different process (MPEP § 806.05(f)). In the instant case, the product as claimed can be made by another and materially different process such as placing the smoking material into an already prefabricated cylinder of metallic foil and paper covering.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
the inventions have acquired a separate status in the art in view of their different classification;
the inventions have acquired a separate status in the art due to their recognized divergent subject matter;
the inventions require a different field of search (for example, searching different classes/subclasses or electronic resources, or employing different search queries);
the prior art applicable to one invention would not likely be applicable to another invention;
the inventions are likely to raise different non-prior art issues under 35 U.S.C. 101 and/or 35 U.S.C. 112(a).
The inventions are directed to an article for use with a smoking device and a method of manufacture of a capsule for use with a smoking device, the examination of which would be expected to involve substantially different search strategies, fields of search and different question of patentability. This would be expected to introduce serious burden into the examination of all inventions presented in this application.
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 23 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Response to Arguments
Applicant’s arguments, see page 7, filed 12/16/2025, with respect to the rejection of claims 6 and 13-15 have been fully considered and are persuasive. The Applicant has amended claims 6 and 13 to overcome the rejection under 35 USC 112(b). The rejection of claims 6 and 13-15 under 35 USC 112(b) has been withdrawn.
Applicant’s arguments, see pages 7-9, filed 12/16/2025, with respect to the rejection(s) of claim(s) 1-20 under 35 USC 102/103 have been fully considered and are persuasive. The Applicant has amended claim 1 to require the paper covering defining prefabricated openings prior to insertion of the capsule into the smoking device, whereas previously this was not required. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of previously applied art and newly found art.
The following is a modified rejection based on amendments made to the claims.
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.
Claim(s) 1-2, 6, 8, 11 and 13-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fuisz (US2022/0218023, cited in IDS dated 4/26/2023) in view of Reevell (US2019/0261683).
Regarding claim 1, Fuisz discloses:
An article (tobacco stick 9, [0181]) for use with a smoking device (vaporizer, figure 3) that includes at least first and second electrodes (electrical contacts, [0136]) the article comprising:
A capsule (tobacco stick 9) comprising: a smoking material containing one or more active agents (nicotine aerosolized from the tobacco substrate, [0078]).
Metallic foil surrounding the smoking material (heater 10 made of foil, [0188]), the metallic foil being configured to be heated via resistive heating by the electrodes driving a current into the metallic foil ([0190]).
A paper covering that covers the metallic foil (where in certain embodiments the stick has the heater on the inside of the tipping paper, [0116]), the paper covering defining openings via which the electrodes are configured to make electrical contact with the metallic foil (the tipping paper may be pierced by electrical contacts to create an electrical circuit between the electrical contacts of the stick and the device electrical connections, [0121]).
Fuisz does not appear to explicitly disclose the paper covering defining prefabricated openings prior to insertion of the capsule into the smoking device.
Reevell, directed to an aerosol generating system including an aerosol generating article, teaches:
An aerosol-generating article with a wrapper and an electrode and dielectrically material positioned between the wrapper and the aerosol generating substrate [0016].
To facilitate connection of the first electrode to the first electrical contact on the aerosol-generating device, preferably at least a portion of the first electrode is exposed. The wrapper may comprise at least one aperture through which at least a portion of the first electrode can be contacted by the first electrical contact on the aerosol-generating device [0017].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the paper covering of Fuisz by incorporating at least one aperture to facilitate electrical connection with electrical contacts of a device as taught by Reevell, because both Fuisz and Reevell are directed to aerosol generating articles with paper wrappers with an electrical layer beneath to make electrical connection with an electrical contact of a device, Reevell teaches this facilitates electrical connection, and this merely involves incorporating a known way to connect an electrical layer beneath a paper wrapper of an aerosol generating article to an electrical contact of a device (i.e. with at least one aperture) to a similar aerosol generating article to yield predictable results.
Regarding claim 2, another embodiment of Fuisz teaches wherein the metallic foil is shaped such that at least a portion of the metallic foil is embedded within the smoking material (where the metal foil resistance heater is rolled together with the tobacco substrate, [0222], figure 15). This allows to increase the contact area of the heater with the tobacco substrate [0222].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Fuisz to have the metal foil resistance heater also rolled together with the tobacco substrate as taught by another embodiment of Fuisz to increase the contact area of the heater with the tobacco substrate.
Regarding claim 6, Fuisz discloses:
Wherein the metallic foil has a first characteristic at locations at which the electrodes are configured to contact the metallic foil (the shape and surface area size of contact rings 17, [0186], figure 1).
A second characteristic along a region in which the metallic foil surrounds the smoking material that is between the locations at which the electrodes are configured to contact the metallic foil (the shape and surface area size of heating surface 18, [0186], figure 1).
Wherein the second characteristic is different to the first characteristic (as the contact ring 17 is a different shape and covers a different amount of surface area than the heating surface 18, as shown in figure 1).
Regarding claim 8, the smoking device itself is not a positively claimed limitation. The limitation of wherein the smoking device includes one or more batteries, and wherein an overall resistance to the current that is provided by the capsule is configured to substantially match an internal resistance of the one or more batteries of the smoking device, is an intended use of the capsule. A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. See MPEP § 2114(II).
Therefore, as Fuisz discloses that the capsule (tobacco stick 9) is configured for use with a vaporizing device comprising a battery [0181], the capsule is considered to be capable of being used with a smoking device comprising a battery with an internal resistance that substantially matches the overall resistance to the current provided by the capsule.
Regarding claim 11, Fuisz discloses wherein the capsule may be oval or other shape [0180]. Fuisz does not teach the degree of ovality and thus where the cross- sectional shape having a ratio of more than 2:1 between a long side of the cross-sectional shape and a short side of the cross-sectional shape. However, the change in form or shape, without any new or unexpected results, is an obvious engineering design. See MPEP § 2144.04 IV B.
Regarding claim 13, the smoking device itself is not a positively claimed limitation. The limitation of wherein at least a portion of the capsule is configured to be flattened by the smoking device prior to metallic foil being heated by the smoking device, is dependent on the smoking device with which the capsule is intended to be used and is therefore an intended use of the capsule. If the prior art structure is capable of performing the intended use, then it meets the claim.
Therefore as the capsule (tobacco stick 9) is capable of being flattened by a smoking device prior to the one or more heating elements being heated by the smoking device, the claimed capsule is not differentiated from the prior art.
Regarding claims 14-15, Fuisz discloses wherein the capsule has a circular cross-section shape (the tobacco stick may be cylindrical, [0180]).
The limitation of the capsule is configured to be flattened to define a non-circular cross-sectional shape, and the cross-sectional shape having a ratio of more than 2:1 between a long side of the cross-sectional shape and a short side of the cross-sectional shape, is an intended use of the capsule. If the prior art structure is capable of performing the intended use, then it meets the claim. Therefore as the capsule (tobacco stick 9) is capable of being flattened to define a non-circular cross-sectional shape, the claimed capsule is not differentiated from the prior art.
Regarding claim 16, Fuisz discloses wherein the capsule comprises an elongate capsule (as shown in figure 1) having a length of 45.2 mm [0086] or 83 mm [0087], which falls within the claimed range of between 15 mm and 150 mm.
Regarding claim 17, it is apparent that airflow through the capsule is substantially in an axial direction along a length of the capsule of Fuisz (figures 1-2).
Regarding claims 18 and 20, Fuisz discloses wherein the metallic foil is configured to be heated via resistive heating by the first electrode driving a current to the second electrode [0190]. As the tobacco stick length is 45.2 mm [0086] or 83 mm [0087], it would be obvious to one of ordinary skill in that art that a length in an axial direction along the metallic foil between contact rings 17 is more than 5 mm and 15 mm. Alternatively, 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. See MPEP § 2144.04.IV.A.
Regarding claim 19, it is apparent that airflow through the capsule is substantially in an axial direction along a length of the capsule of Fuisz (figures 1-2).
Regarding claims 21, modified Fuisz does not appear to explicitly disclose wherein the prefabricated openings comprise a series of regular holes or slits spaced evenly around the circumference of the capsule.
However, Fuisz further teaches that the device chamber may contain individual contacts that correspond to contacts on the botanical stick [0136] such as activated pins [0138]. As the contact rings 17 of the capsule is shown in figure 1 to surround the circumference of the capsule, and the heating surface 18 as shown in figure 1 has longitudinal stripes that are spaced evenly around the circumference of the capsule, it would be obvious to one of ordinary skill in the art that the activated pins of the device would contact the capsule evenly spaced around the circumference of the capsule.
As such, it would be obvious for one of ordinary skill in the art when modifying Fuisz in view to Reevell to have at least one aperture in the paper covering match the activated pins of the device in order to facilitate the electrical connection, and thus the prefabricated openings would comprise a series of regular holes or slits spaced evenly around the circumference of the capsule.
Regarding claims 22, modified Fuisz does not appear to explicitly disclose wherein the prefabricated openings comprise cylindrical exposed locations wherein the metallic foil is exposed.
However, Fuisz further teaches that the device chamber may contain individual contacts that correspond to contacts on the botanical stick such as semi rings [0136], which are cylindrical in shape.
As such, it would be obvious for one of ordinary skill in the art when modifying Fuisz in view to Reevell to have at least one aperture in the paper covering match the semi rings of the device in order to facilitate the electrical connection, and thus the prefabricated openings would comprise cylindrical exposed locations wherein the metallic foil is exposed.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fuisz (US2022/0218023, cited in IDS dated 4/26/2023) in view of Reevell (US2019/0261683) as applied to claim 1 above, and further in view of Bowen (US2020/0037669).
Regarding claim 3, Fuisz discloses wherein the metallic foil comprises a plurality of regions (where the heating surface 18 of the foil is in the form of several longitudinal stripes, [0186]).
Fuisz does not appear to explicitly disclose each of the regions having a respective, different electrical resistance profile, such that upon a given current being driven through the metallic foil each of the region’s heats to a respective, different temperature.
However, Bowen, directed to a vaporizer cartridge, teaches:
A heating element that includes an electrically resistive area made out of an electrically conductive material, such as an electrically conductive foil material [0071].
The foil material can be treated to increase its electrical resistance in a desired part of the electrically conductive foil (e.g., by perforating, varying a thickness or other dimension of a conducive cross-section, etc.). Thereby creating different areas of electrical resistance. Such different areas of electrical resistance can affect the temperature reached when the electrically resistive part is caused to be heated [0071). Thus the foil material has a plurality of regions with each of the regions having a respective, different electrical resistance profile, such that upon a given current being driven through the metallic foil each of the region’s heats to a respective, different temperature.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the metallic foil of Fuisz to be treated to increase its electrical resistance in a desired part of the electrically conductive foil as taught by Bowen, because both Fuisz and Bowen are directed to metallic foil heaters of articles to be vaporized, Bowen teaches this creates different areas of electrical resistance which can affect the temperature reached, and this merely involves incorporating a known metallic foil heater to a similar article to yield predictable results.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fuisz (US2022/0218023, cited in IDS dated 4/26/2023) in view of Reevell (US2019/0261683) as applied to claim 1 above, and further in view of Worm (US2019/0289908).
Regarding claim 4, Fuisz does not appear to explicitly disclose the capsule further comprises a collapse-prevention element configured to facilitate electrical contact between the electrodes and the metallic foil, by preventing the capsule from collapsing.
Worm, directed to an aerosol delivery device, teaches:
Where a heating member is located around the outside of a hollow aerosol source member, 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].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the capsule of Fuisz to support the interior portion of the capsule as taught by Worm, and thus facilitate electrical contact between the electrodes and the metallic foil, because both Fuisz and Worm are directed to aerosol generating articles with heating members around the outside, Worm teaches this would prevent the article from collapsing, and this merely involves incorporating a known element (i.e. interior support) to a similar aerosol generating article to yield predictable results.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fuisz (US2022/0218023, cited in IDS dated 4/26/2023) in view of Reevell (US2019/0261683) as applied to claim 1 above, and further in view of Saygili (US2023/0346019).
Regarding claim 5, Fuisz does not appear to explicitly disclose wherein the capsule further comprises an electrical-contact coating that coats the metallic foil at locations at which the electrodes are configured to contact the capsule.
Saygili, directed to an aerosol-generating system, teaches:
A heater element that may comprise a first electrical contact portion and a second electrical contact portion positioned on opposite sides of the heater portion so that an electrical current flowing from the first electrical contact portion to the second electrical contact portion passes through the heater portion [0018]. The heater sheet may be a foil [0020].
The heater portion may be coated or plated with an electrically conductive material, such as gold, silver, copper or zinc. This may provide improved resistance to corrosion. It may also provide an improved thermal conductivity (for faster heating and faster cooling) [0030].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the metallic foil of Fuisz to be coated with an electrically conductive material as taught by Saygili, and thus coat the metallic foil at locations at which the electrodes are configured to contact the capsule, because both Fuisz and Saygili are directed to metallic foils that contacts electrodes, Saygili teaches provides an improved resistance to corrosion, and this merely involves incorporating a known metallic foil element to a similar metallic foil heater to yield predictable results.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fuisz (US2022/0218023, cited in IDS dated 4/26/2023) in view of Reevell (US2019/0261683) as applied to claim 1 above, and further in view of Tasselli (US2023/0107605).
Regarding claim 7, Fuisz does not appear to disclose the capsule further comprises an inner lining that lines an inside of the metallic foil, the inner lining being configured to diffuse heat that is generated by the metallic foil.
Tasselli, directed to a nicotine cartridge, teaches:
An electrically resistance heater element contained in a heat diffusing material. The diffusion of the heat through the heat diffusing material generally evens out heat profile generated by the heating element(s) to prevent the formation of localized hot spots on the heater (32) surface [0088].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the metallic foil of Fuisz to be contained in a heat diffusing material as taught by Tasselli, and thus comprise an inner lining that lines an inside of the metallic foil, because both Fuisz and Tasselli are directed to heating elements to generate an aerosol, Tasselli teaches it prevents the formation of localized hot spots, and this merely involves incorporating a known heater element to yield predictable results.
Claim(s) 9 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fuisz (US2022/0218023, cited in IDS dated 4/26/2023) in view of Reevell (US2019/0261683) as applied to claim 1 above, and further in view of Ademe (US2015/0157052).
Regarding claim 9, Fuisz does not appear to disclose wherein the paper covering is adhered to itself along a band of overlap, such as to form a cylindrical shape, and wherein an electrically insulating material is disposed along the band of overlap, to isolate an inner layer of the metallic foil from the electrodes.
Ademe, directed to a smoking article, teaches:
An elongate paper sheet 80 is arranged forming an overlap zone 95. A suitable adhesive material is applied in the region of overlap zone 98 so as to secure those lateral end portions together and hence secure the outer wrapping material in a generally tubular fashion around the heat conductive foil 60 of the heat generation segment 55 [0048].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the paper covering of Fuisz to be arranged around the conductive foil forming an overlap zone with an adhesive applied in the overlap zone as taught by Ademe, and thus the paper covering is adhered to itself along a band of overlap and the adhesive defining an electrically insulating material that isolates an inner layer of the metallic foil from the electrodes, because both Fuisz and Ademe are directed to aerosol generating articles with paper coverings surrounding a heating foil, Ademe teaches this secures the paper covering around the heating foil, and this merely involves incorporating a known way to secure a paper wrapper around a similar aerosol generating article to yield predictable results.
Regarding claim 12, Fuisz is silent to the thickness of the metallic foil.
However Ademe further teaches a foil strip with a thickness of about 0.0005 mm to about 0.05 mm [0076], or 0.5 micron to 50 microns. As this is a conventional foil thickness known in the art, it would have been obvious to one of ordinary skill in the art to apply to the foil of Fuisz to achieve predictable results. The range taught by the prior art overlaps the claimed range of between 1 micron and 20 microns and is therefore prima facie obvious.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fuisz (US2022/0218023, cited in IDS dated 4/26/2023) in view of Reevell (US2019/0261683) as applied to claim 1 above, and further in view of Ademe (US2015/0157052) and Bowen (US2020/0037669).
Regarding claim 10, Fuisz does not appear to disclose (I) wherein the paper covering is adhered to itself along a band of overlap, such as to form a cylindrical shape, and (II) wherein the metallic foil is treated along the band of overlap, in order to increase resistance of the metallic foil along the band of overlap.
In regard to (I), Ademe, directed to a smoking article, teaches:
An elongate paper sheet 80 is arranged forming an overlap zone 95. A suitable adhesive material is applied in the region of overlap zone 98 so as to secure those lateral end portions together and hence secure the outer wrapping material in a generally tubular fashion around the heat conductive foil 60 of the heat generation segment 55 [0048].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the paper covering of Fuisz to be arranged around the conductive foil forming an overlap zone with an adhesive applied in the overlap zone as taught by Ademe, and thus the paper covering is adhered to itself along a band of overlap such to form a cylindrical shape, because both Fuisz and Ademe are directed to aerosol generating articles with paper coverings surrounding a heating foil, Ademe teaches this secures the paper covering around the heating foil, and this merely involves incorporating a known way to secure a paper wrapper around a similar aerosol generating article to yield predictable results.
In regard to (II), Bowen, directed to a vaporizer cartridge, teaches:
A heating element that includes an electrically resistive area made out of an electrically conductive material, such as an electrically conductive foil material [0071].
The foil material can be treated to increase its electrical resistance in a desired part of the electrically conductive foil (e.g., by perforating, varying a thickness or other dimension of a conducive cross-section, etc.). Thereby creating different areas of electrical resistance. Such different areas of electrical resistance can affect the temperature reached when the electrically resistive part is caused to be heated [0071).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the metallic foil of Fuisz to be treated to increase its electrical resistance in a desired part of the electrically conductive foil as taught by Bowen, because both Fuisz and Bowen are directed to metallic foil heaters of articles to be vaporized, Bowen teaches this creates different areas of electrical resistance which can affect the temperature reached, and this merely involves incorporating a known metallic foil heater to a similar article to yield predictable results.
It would be obvious to one having ordinary skill in the art to treat the metallic foil along the band of overlap as this is merely choosing from a finite number of locations to treat the metallic foil. Choosing from a finite number of identified, predictable solutions, with a reasonable expectation for success, is likely to be obvious to a person if ordinary skill in the art. See MPEP § 2143, E.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 Nicole A Szumigalski whose telephone number is (703)756-1212. The examiner can normally be reached Monday - Friday: 8:00 - 4:30 EST.
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/N.A.S./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755