DETAILED ACTION
Response to Arguments
Applicant's arguments filed 11/14/2025 with respect to claim 1 have been fully considered but they are not persuasive. Applicant argues that Fuisz does not read on the amended limitations. The Examiner disagrees. In Fig. 2 of Fuisz, left contact ring 17 and right contact ring 17 correspond to the claimed locations at which the electrodes are configured to contact the metallic foil, having a first characteristic. Between these locations is a region in which the foil surrounds the smoking material having a second characteristic at heating surfaces 18. Within this region, heating surfaces 18 in combination with middle contact ring 17 correspond to the claimed plurality of regions along its length within the region in which the metallic foil surrounds the smoking material. Due to the different configuration of the regions, each of the regions is interpreted as inherently having a respective, different electrical resistance profile, such that upon a given current being driven through the metallic foil each of the regions heats to a respective, different temperature, to heat the smoking material at that location to a respective, different temperature.
Applicant’s arguments in view of amendment with respect to claim 19 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made as detailed below.
Claim Rejections - 35 USC § 102
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 –
Claims 1, 2, 7, 10-11, and 13-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fuisz (US 2022/0218023).
Regarding claim 1, Fuisz teaches an apparatus for use with a smoking device 1 that includes at least first and second electrodes 14 [Fig. 4-5], the apparatus comprising: a tobacco stick 9 (capsule) comprising: a smoking material containing one or more active agents [0180]; and metallic foil 10 surrounding the smoking material, the metallic foil being configured to be heated via resistive heating by the electrodes driving a current into the metallic foil [Fig. 2; 0184-0189]. In Fig. 2 of Fuisz, left contact ring 17 and right contact ring 17 correspond to the claimed locations at which the electrodes are configured to contact the metallic foil, having a first characteristic. Between these locations is a region in which the foil surrounds the smoking material having a second characteristic at heating surfaces 18. Within this region, heating surfaces 18 in combination with middle contact ring 17 correspond to the claimed plurality of regions along its length within the region in which the metallic foil surrounds the smoking material. Due to the different configuration of the regions, each of the regions is interpreted as inherently having a respective, different electrical resistance profile, such that upon a given current being driven through the metallic foil each of the regions heats to a respective, different temperature, to heat the smoking material at that location to a respective, different temperature.
Regarding claim 2, Fuisz teaches the metallic foil is shaped such that at least a portion of the metallic foil is embedded within the smoking material [Fig. 15; 0222].
Regarding claims 7 and 11, the smoking device itself is not a positively recited claim limitation. The claimed limitation is dependent on the smoking device with which the capsule is intended to be used. The instant limitations do not further limit the structure or configuration of the capsule itself to distinguish from that of Fuisz.
Regarding claim 10, Fuisz teaches the capsule further comprises a paper covering that covers the metallic foil [0116]. Fuisz teaches penetrating the tipping paper to reach the internal contacts [138], at which point the paper covering then defines openings via which the electrodes are configured to make electrical contact with the metallic foil.
Regarding claims 13-14, the capsule of modified Fuisz is interpreted as capable of, or “configured to”, being flattened if it were to be used with a smoking device as claimed. The degree to which the capsule is flattened is dependent on the level of pressure applied from the smoking device with which the capsule is intended to be used.
Regarding claims 15-18, Fuisz teaches the capsule comprises an elongate capsule having a length of 45 mm [0086] or 83 mm [0087]. It is apparent that airflow occurs in an axial direction along a length of the capsule of Fuisz [Fig. 1-2]. Fuisz teaches the metallic foil is configured to be heated via resistive heating by the first electrode driving a current to the second electrode along the foil [0184-0187]. In view of the length of the capsule being 45 mm or 83 mm, the length of the foil between electrical contacts 17 of the foil [Fig. 1] is interpreted being significantly larger than 5 mm.
Claim Rejections - 35 USC § 103
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 Fuisz as applied to claim 1 above, and further in view of Worm (US 2019/0289908).
Fuisz does not teach a collapse-prevention element configured to facilitate electrical contact between the electrodes and the metallic foil, by preventing the capsule from collapsing. Worm 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 exerted on the outside of the aerosol source member [0058]. It would have been obvious to one of ordinary skill in the art to include to support the capsule of Fuisz in the manner suggested by Worm, i.e. a collapse-prevention element configured to prevent the capsule from collapsing (and thus facilitate electrical contact between the electrodes and the metallic foil) to maintain structural stability of the device during use.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Fuisz as applied to claim 1 above, and further in view of Tanaka (US 2015/0111059).
Fuisz does not teach 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. Tanaka teaches a foil wherein a coating layer is applied so that corrosion resistance and electric contact properties are provided stably for a long duration [0007]. It would have been obvious to one of ordinary skill in the art to include in Fuisz an electrical-contact coating that coats the metallic foil at locations at which the electrodes are configured to contact the capsule for the reasons above suggested by Tanaka.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Fuisz as applied to claim 1 above, and further in view of Tasselli (US 2023/0107605).
Fuisz does not teach 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 teaches a vapor delivery cartridge a heat diffusion material is provided with a heater to even out the heat profile and prevent the formation of localized hot spots [0088]. It would have been obvious to one of ordinary skill in the art to include in the capsule of Fuisz an inner lining that lines an inside of the metallic foil (as this is side in contact with the smoking material), the inner lining being configured to diffuse heat that is generated by the metallic foil, for the reasons above suggested by Tasselli.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Fuisz as applied to claim 1 above, and further in view of Ademe (US 2015/0157052).
Fuisz teaches the capsule further comprises a paper covering that covers the metallic foil [0116]. Fuisz does not teach the paper covering being adhered to itself along a band of overlap such as to form a cylindrical shape. However, this configuration is known in the art as taught by Ademe [0047-0048; Fig. 1-2] and would have been obvious to one of ordinary skill in the art to apply to the paper of Fuisz to achieve the predictable result of affixing the paper covering around the capsule. The adhesive disposed along the band of overlap is interpreted to be an electrically insulating material that isolates an inner layer of the metallic foil from the electrodes. The holes in the foil taught by Fuisz [0153] would increase resistance of the metallic foil along the band of overlap. See [0141] of the published instant application: “the foil may be etched (e.g., to create openings (e.g., holes or slits) in the foil), in order to increase its resistance within region 122, as shown in FIG. 21B.”
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Fuisz as applied to claim 1 above, and further in view of Hubbard (US 2020/0093181).
Fuisz is silent to a thickness of the foil. Hubbard teaches a smoking article including a heat conductive foil having a thickness of 0.01-0.05 mm [0095], or 10-50 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 modified Fuisz to achieve predictable results. In the case where the claimed ranges "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).
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Fuisz as applied to claim 1 above, and further in view of Spencer (US 2019/0133187).
Fuisz does not teach each of the regions along the length of the metallic foil comprises a respective, different material that is configured to be vaporized by heating of the metallic foil, wherein each respective, different material has different properties. Spencer a smoking article comprising at least two regions having a different composition from each other [0004], i.e. regions comprising a respective, different material that is configured to be vaporized by heating, wherein each respective, different material has different properties. It would have been obvious to one of ordinary skill in the art to modify the article of Fuisz such that each of the regions along the length of the metallic foil comprises a respective, different material that is configured to be vaporized by heating of the metallic foil, wherein each respective, different material has different properties to achieve the predictable result of forming a vapor from the different regions. The smoking device itself is not a positively recited claim limitation and thus the limitations of claim 20 do not further limit the structure or configuration of the capsule itself to distinguish from that of modified Fuisz.
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.
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/ERIC YAARY/Examiner, Art Unit 1755