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 .
Response to Amendment
The amendments entered on 1/29/2026 have been accepted. Claims 1 and 13 are amended. Claims 1-20 are pending. Applicant’s amendments to the claims have overcome the 112(b) rejections previously set forth in the non-final office action mailed 1/29/2026.
Information Disclosure Statement
The information disclosure statement (IDS) filed on 1/29/2026 has been considered by the Examiner.
Drawings
The drawings are objected to because Fig. 23D has several reference lines which do not have associated reference numbers attached to them, such that it is not clear what each of the lines without numbers is referring to. 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.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claims 17-18 and 20 are objected to because of the following informalities:
Claims 17 should read “…elongate capsule has the length”, because the length was previously introduced in claim 16 of which this depends.
Claim 18 should read “…along the length of the capsule”, because the length was previously introduced in claim 16 of which this depends.
Claim 20 should read “…along the length of the capsule”, because the length was previously introduced in claim 16 of which this depends.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. In particular, the limitation of claim 1” “…wherein an overall resistance to the current that is provided by the capsule is configured to be substantially equal to an internal resistance of the one or more batteries of the smoking device”.
There are many factors to be considered when determining whether there is sufficient evidence to support a determination that a disclosure does not satisfy the enablement requirement and whether any necessary experimentation is "undue." These factors include, but are not limited to:
(A) The breadth of the claims;
(B) The nature of the invention;
(C) The state of the prior art;
(D) The level of one of ordinary skill;
(E) The level of predictability in the art;
(F) The amount of direction provided by the inventor;
(G) The existence of working examples; and
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
In re Wands, 858 F.2d 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988)
The broadest reasonable interpretation of claim 1 covers an apparatus for use with a smoking device which includes one or more batteries, wherein the overall resistance to the current of the capsule is substantially equal to the internal resistance of the one or more batteries. After consideration of the factors above, it is determined that the specification does not provide direction on how to achieve a substantially same overall resistance of the capsule and internal resistance of the one or more batteries.
Applicant’s originally filed specification details that there are a substantial number of factors which affect the overall resistance: “For some applications, the overall resistance of coating as well as that of the heating element is configured to provide a desired overall resistance, by configuring the materials, the thickness, and/or treatments that are applied to the coatings and/or to the heating element, as described in further detail hereinbelow." [0132 of PGPUB]. Applicant further argues in their Remarks dated 1/29/2026 on pg. 7 that "The overall resistance of the capsule is not just due to the resistance of a heating coil, but rather due to all internal electronic components of the capsule, and it is this overall resistance which is configured to be substantially equal to an internal resistance of the one or more batteries".
So according to the instant application (and to some extent the arguments offered by Applicant in their Remarks), the overall resistance to the current provided by the capsule would be dependent upon:
The materials of the apparatus/capsule/foil/coating/paper/etc. [0132]
The thicknesses of the foil/capsule/coating/paper/etc. [0132]
Treatments that are applied to the capsule (including possibilities of chemical treatment, sand-blasting, etching, coloring, knurling, and/or oxidation) [0113] or treatments to covering materials (such as UV treatment [0141])
All of the internal electronic components of the capsule, which include further details and specifications beyond what is listed above.
In addition, Applicant’s specification (and claims) detail additional resistance affecting factors in the capsule, such that the capsule/foils may have unique structures so as to have differing resistances throughout different regions of the capsule with varying thicknesses, openings/holes/slits, paper coverings [0137, Claim 3].
The claims do not cover all or even most of these varying factors such that the breadth of the claims is extremely limited and do not recite all of the critical factors which affect the overall resistance of the capsule.
While Applicant does provide some amount of direction via identifying several factors that may affect the overall resistance (material/thickness/treatments of any capsule components), these are not meaningfully combined into a single embodiment or suggested to a person of ordinary skill in the art how the apparatus is to be controlled so as to ensure that an overall resistance may be achieved to match an internal resistance of a battery. The identified factors affect the resistance in varying and contrasting ways that would lead to very different results in the overall resistance depending on which variables are chosen. There would essentially have to be chosen a perfect balance in all of these known variables so as to hit a “sweet spot”, wherein some of the resistance increasing factors would be balanced with resistance decreasing factors so as to arrive at a resistance value that is equal to an internal resistance. It is not at all clear what this would look like, or how one of ordinary skill in the art would arrive upon the limitation as claimed. And additionally, Applicant’s Remarks filed 1/29/2026 seem to suggest that there are potentially numerous other factors which would affect the resistances of the capsule (“due to all internal electronic components of the capsule”) which go beyond what the specification even discusses as potential affecting factors.
Additionally, Applicant has not adequately discussed or provided any direction as to the internal resistance of the batteries which must be equal to the overall resistance of the capsule. A battery’s internal resistance would be highly dependent upon the ambient temperature (cold environments vs hot environments), the age of the battery, the amount of charge in the battery (when the battery is at full charge vs when it is nearly depleted), whether the battery and device is actively running, etc. Applicant does not discuss these factors in anyway. See 112(b) rejection below for further details on this.
It does not seem standard in the prior art or for one of ordinary skill in the art to provide an overall resistance to the entire capsule which is equal to an internal resistance of the batteries.
Applicant has not provided any working examples or embodiments wherein the overall resistance of the capsule is equal to an internal resistance of the one or more batteries.
The specification does not adequately express how these various contrasting and conflicting factors are to be combined so as to keep an overall resistance of the capsule equal to an internal resistance of the battery. It would necessitate a considerable amount of experimentation so as to determine for a specific type of battery chosen an optimal material type of the capsule/foil/coating/paper/etc., thicknesses of the capsule/foil/coating/paper/etc., optimal treatments applied to each of these components, unique structures with varying resistances across the length of the capsule [Claim 3, 0137], and any and all other factors affecting the internal components of the capsule so as to ensure that the overall resistance and internal resistances are substantially the same. Applicant provides no clear path forward for determining how to achieve this other than identifying some factors which affect the overall resistance.
With regards to factors (B) and (D)-(E), these factors have been considered but do not resolve the issue of undue experimentation. As such, claim 1 is rejected under 35 USC 112(a) as failing to comply with the enablement requirement, and claims 2-20 are also rejected as they do not resolve the issues of claim 1.
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.
Claims 1-20 are 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 1 requires for an overall resistance to the current of the capsule to be substantially equal to “an internal resistance of the one or more batteries of the smoking device”. The internal resistance of a battery is not a set value but rather it varies dependent upon a variety of factors throughout the runtime and lifetime of the battery. For example, hot vs cold ambient temperatures, the amount of charge in the battery (100% vs. 5%, for example), the age of the battery, and whether the device/battery are actively running are all known in the art to affect an internal resistance of the battery. The claims nor the instant specification detail what the conditions are to be taken at for the battery of the smoking device when determining the internal resistance. As such, the metes and bounds of the claim are unclear, as it is not clear what the conditions of the battery should be when determining if the internal resistance is equal to the overall resistance of the capsule. Claims 2-20 are rejected for relying upon a rejected claim.
The term “substantially” in claim 1 is a relative term which renders the claim indefinite. The term “substantially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Claims 2-20 are rejected for relying upon a rejected claim. The claim will be examined such that the overall resistance of the capsule is equal to an internal resistance of the batteries.
Claim Interpretation
It is noted that the claims are tied to “an apparatus”, such that the claim will be considered in regards to the structural limitations imparted on the apparatus. The smoking device which includes the electrodes and batteries is merely an intended use of the apparatus (for the apparatus to be used with such a smoking device). See MPEP 2114.II. “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”.
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, 6, 11, and 13-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fuisz et al. (US 2022/0218023, of record).
Regarding claim 1, Fuisz teaches an apparatus for use with a smoking device that includes at least first and second electrodes and one or more batteries (the apparatus is considered to be the tobacco stick “9” which is inserted into the vaporizer [Fig. 5], wherein the vaporizer comprises first and second electrodes “14” and/or “16” [Fig. 5] and a battery “2” [Fig.5, 0181]. It being noted that the smoking device/electrodes/batteries are not positively recited and are considered an intended use of the apparatus), the apparatus comprising:
a capsule (Figure 2, tobacco stick 9, [0181]) comprising:
a smoking material containing one or more active agents (tobacco stick contains nicotine, which is and active agent [0078]);
and metallic foil surrounding the smoking material (Figure 2, individual heater 10 made of foil, [0188]),
and the metallic foil being configured to be heated via resistive heating by the electrodes driving a current into the metallic foil (Figure 2, individual resistive heater 10 heats through conductive lines and contact rings 17, [0190]),
wherein an overall resistance to the current of the capsule is equal to an internal resistance of the one or more batteries (as stated above, the smoking device and the components of the smoking device such as the batteries are merely an intended use of the claimed apparatus. See MPEP 2114.II. “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”. The claimed apparatus would clearly comprise “an overall resistance” of its capsule based upon a multitude of factors including the materials used, thicknesses, treatments etc. And as the apparatus of Fuisz would clearly be capable of being utilized with a variety of types of batteries, this would include batteries which would have an equal internal resistance to that of the overall resistance of the current. As such, the claimed apparatus is no different from the apparatus as taught by Fuisz).
Regarding claim 6, Fuisz discloses the apparatus according to claim 1, wherein the metallic foil has a first configuration at locations at which the electrodes are configured to contact the metallic foil (Figure 2, contact rings 17, [0188]), and a second configuration 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 (Figure 2, heating surface 18 has longitudinal stripes, which is a different configuration than the flat surface of the contact rings 17, [0188]).
Regarding claim 11, Fuisz discloses the apparatus according to claim 1, wherein the capsule further comprises a paper covering that covers the metallic foil (stick has heater (the metallic foil) inside the tipping paper, [0116]), the paper covering defining openings via which the electrodes are configured to make electrical contact with the metallic foil (tipping paper may be pierced by electrical device contacts so a circuit can be made with device contacts, [0121]).
Regarding claim 13, Fuisz discloses the apparatus according to claim 1, wherein at least a portion of the capsule is configured to be flattened by the smoking device prior to the one or more heating elements being heated by the smoking device (the “smoking device” is not positively cited, making this an “intended use” limitation. See MPEP 2114.II. “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.” Examiner holds that this is the case with this limitation, since Fuisz teaches a tobacco stick (see rejection for claim 1 above) for use with a vaporizing device that would be capable of flattening it).
Regarding claim 14-15, Fuisz discloses the apparatus according to claim 13, wherein the capsule has a circular cross-sectional shape (tobacco stick may be cylindrical, [0180]), and is configured to be flattened to define a non-circular cross-sectional shape, such as to define a 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 ( this is an “intended use” limitation. See MPEP 2114.II. “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.” Examiner holds that this is the case with this limitation, since Fuisz teaches a tobacco stick (see rejection for claim 1 above) with a circular cross-section that is capable of being flattened to a non-circular cross-section with the claimed ratio).
Regarding claim 16, Fuisz discloses the apparatus according to claim 1, wherein the capsule comprises an elongate capsule having a length of between 15 mm and 150 mm (Figure 2, tobacco stick 9 is elongate ([0181]) and may have a length of 45.2 mm or 83 mm, [0086]-[0087]).
Regarding claim 17, Fuisz discloses the apparatus according to claim 16, wherein the elongate capsule has a length of between 50 mm and 90 mm (length of 83 mm exemplified in [0087]).
Regarding claim 18, Fuisz discloses the apparatus according to claim 16, wherein the capsule is configured such that airflow through the capsule is substantially in an axial direction along a length of the capsule (object to try to maximize airflow through tobacco plug, which is largely in the axial direction of the tobacco stick, [0065]).
Regarding claim 19, Fuisz discloses that the foil is heated by resistive heating by the electrodes driving currents between the two along a length of more than 5mm in an axial direction (Figure 2, individual resistive heater 10 heats through conductive lines and contact rings 17, [0190], wherein the electrodes “14” contact with the rings “17” for resistive heating [0187, Fig. 5-6]. The first electrode may be considered the top “14” and the second the bottom “14” as in Fig. 5. Given how the length of the capsule may be 83mm [0087], and as how the distance between the electrodes would be approximately 25% of the total axial length of the capsule [see Fig. 5], the length would be considerably above the 5mm as claimed. 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)).
Regarding claim 20, Fuisz discloses that the capsule has an airflow through in an axial direction (object to try to maximize airflow through tobacco plug, which is largely in the axial direction of the tobacco stick, [0065]).
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 2 is rejected under 35 U.S.C. 103 as being unpatentable over Fuisz et al. (US 2022/0218023, of record) as applied to claim 1 above, and further in view of Worm et al. (US 2019/0289908, of record).
Regarding claim 2, Fuisz discloses the apparatus according to claim 1, as set forth above. Fuisz fails to disclose wherein 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 teaches a similar aerosol source member wherein 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 (interior of the aerosol source member contains a support to prevent collapsing, [0058]). Worm also teaches that a support on the interior of the aerosol source member prevents collapsing due to any outward pressure of the heating member exerted on the outside of the aerosol source member [0058].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Fuisz to incorporate the teachings of Worm to provide a support (i.e. collapse-prevention element) such as the one taught by Worm because doing so would prevent collapsing due to any outward pressure of the heating member exerted on the outside of the aerosol source member, as recognized by Worm [0058].
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Fuisz et al. (US 2022/0218023, of record) as applied to claim 1 above, and further in view of Bowen et al. (US 2020/0037669, of record).
Regarding claim 3, Fuisz discloses the apparatus according to claim 1, and wherein the metallic foil comprises a plurality of regions (Figure 2, heating surfaces 18 in form of several longitudinal stripes, [0188]). Fuisz fails to 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 regions heats to a respective, different temperature. Bowen teaches a vaporizer cartridge with a heating element made out foil wherein 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 regions heats to a respective, different temperature (foil can be treated (by perforation, varying thickness, etc.) to create different electrical resistance areas that can affect the temperature reached when heating the foil, [0071]). Bowen also teaches that this allows for different temperatures to be reached in different parts of the foil as desired [0071].
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Fuisz to incorporate the teachings of Bowen to treat the foil to create different electrical resistance areas because doing so would allow for different parts of the foil to be heated to different temperatures as desired, as recognized by Bowen [0071].
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Fuisz et al. (US2022/0218023, of record), as applied to claim 1 above, and further in view of Fuisz (US2022/0218023).
Regarding claim 4, Fuisz discloses the apparatus according to claim 1, as set forth above. Fuisz discloses in a different embodiment wherein the metallic foil is shaped such that at least a portion of the metallic foil is embedded within the smoking material (Figure 15, metal foil resistance heater 18” is rolled together with the tobacco substrate 22, [0222]). Fuisz also discloses that this increases the contact area of the heater with the tobacco substrate and allows for the use of a lower temperature to completely heat the substrate [0222].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fuisz as presented in the rejection in claim 1 above to incorporate the teachings of a separate embodiment of Fuisz to have the metal foil resistance heater rolled together with the tobacco substrate because doing so would increase the contact area of the heater with the tobacco substrate and allow for the use of a lower temperature to completely heat the substrate, as recognized by Fuisz [0222].
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Fuisz et al. (US 2022/0218023, of record) as applied to claim 1 above, and further in view of Saygili (US 2023/0346019, of record).
Regarding claim 5, Fuisz discloses the apparatus according to claim 1, as set forth above. Fuisz fails to 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 teaches a similar cartridge for an aerosol generating device 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 (heater element may comprise first and second electrical contact portions and the heater sheet may be a foil ([0018] and [0020]), and the heater portion may be coated or plated with an electrically conductive material, [0030]). Saygili also teaches that the coating provides for improved thermal conductivity for faster heating and cooling as well as reduce the electrical resistance if necessary [0030].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Fuisz to incorporate the teachings of Saygili to coat the electrical contacts with an electrically conductive material because doing so would improve the thermal conductivity for faster heating and cooling as well as reduce the electrical resistance if necessary, as recognized Saygili [0030].
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Fuisz et al. (US 2022/0218023, of record) as applied to claim 1 above, and further in view of Althorpe (US 2017/0360092).
Regarding claim 7, Fuisz discloses the apparatus according to claim 1, as set forth above. Fuisz fails to disclose wherein 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. Althorpe teaches a similar electronic nicotine delivery system that uses resistive heating wherein 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 (electrically resistive material may be a foil between two layers of a heat diffusing material, [0060]). Althorpe also teaches that the heat diffusing material evens out the heat profile generated to prevent the formation of localized hot spots on the heater surface [0043].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Fuisz to incorporate the teachings of Althorpe to include a heat diffusing material at least on the inside of the metallic foil because doing so would even out the heat profile generated to prevent the formation of localized hot spots on the heater surface, as recognized by Althorpe [0043].
Claims 8 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Fuisz et al. (US 2022/0218023, of record) as applied to claim 1 above, and further in view of Ademe (US 2015/0157052, of record).
Regarding claim 8, Fuisz discloses the apparatus according to claim 1, and wherein the capsule further comprises a paper covering that covers the metallic foil (stick has heater (the metallic foil) inside the tipping paper, [0116]). Fuisz fails to disclose wherein the paper covering being 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 teaches a similar smoking article including a metal foil wherein the paper covering being 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 (Figures 1 and 2, elongate paper sheet 80 is arranged to form an overlap zone 95 and an adhesive 98 is applied in the overlap zone to secure the paper sheet to itself to form a generally cylindrical shape (see figures) around the metal foil 60 (therefore isolating it), [0048]). Ademe teaches that the adhesive secures the wrapping material in a tubular fashion around the foil [0048].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Fuisz to incorporate the teachings of Ademe to form an overlap zone with the tipping paper and use an adhesive to form a cylindrical shape around the metallic foil because doing so would secure the wrapping material in a tubular fashion around the foil [0048].
Regarding claim 12, Fuisz discloses the apparatus according to claim 1, as set forth above. Fuisz fails to explicitly disclose wherein the metallic foil has a thickness of between 1 micron and 20 microns. Ademe teaches a similar smoking article including a metal foil wherein the foil strip has a thickness of 0.0005 mm to 0.05 mm (0.5 microns to 50 microns, [0076], this overlaps with the claimed range). Ademe also teaches that the foil strip enhances the heat transfer between the heat generation segment and the aerosol forming materials [0077].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Fuisz to incorporate the teachings of Ademe to have made the foil a thickness of between 0.5 microns and 50 microns (which overlaps with the claimed range) because this foil enhances the heat transfer between the heat generation segment and the aerosol forming materials, as recognized by Ademe [0077].
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Fuisz et al. (US 2022/0218023, of record) as applied to claim 1 above, and further in view of Ademe (US 2015/0157052, of record) and Bowen et al. (US 2020/0037669, of record)
Regarding claim 9, Fuisz discloses the apparatus according to claim 1, and wherein the capsule further comprises a paper covering that covers the metallic foil (stick has heater (the metallic foil) inside the tipping paper, [0116]). Fuisz fails to disclose the paper covering being adhered to itself along a band of overlap, such as to form a cylindrical shape. Ademe teaches a similar smoking article including a metal foil wherein the paper covering being adhered to itself along a band of overlap, such as to form a cylindrical shape (Figures 1 and 2, elongate paper sheet 80 is arranged to form an overlap zone 95 and an adhesive 98 is applied in the overlap zone to secure the paper sheet to itself to form a generally cylindrical shape (see figures) around the metal foil 60 (therefore isolating it), [0048]). Ademe teaches that the adhesive secures the wrapping material in a tubular fashion around the foil [0048].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Fuisz to incorporate the teachings of Ademe to form an overlap zone with the tipping paper and use an adhesive to form a cylindrical shape around the metallic foil because doing so would secure the wrapping material in a tubular fashion around the foil [0048].
Fuisz also fails to disclose 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.Bowen teaches a vaporizer cartridge with a heating element made out foil wherein is treated along the band of overlap, in order to increase resistance of the metallic foil along the band of overlap (foil can be treated (by perforation, varying thickness, etc.) to create different electrical resistance areas that can affect the temperature reached when heating the foil (meaning resistance can be increased where desired), [0071]). Bowen also teaches that this allows for different temperatures to be reached in different parts of the foil as desired [0071].
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Fuisz to incorporate the teachings of Bowen to treat the foil (including the band of overlap as taught by the combination of Fuisz and Ademe above) to create different electrical resistance areas (including increased resistance where desired) because doing so would allow for different parts of the foil to be heated to different temperatures as desired, as recognized by Bowen [0071].
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Fuisz et al. (US 2022/0218023) as applied to claim 1 above, and further in view of Jang (US 2022/0110368, of record).
Regarding claim 10, Fuisz discloses the apparatus according to claim 1, as set forth above. Fuisz fails to disclose wherein the capsule is shaped to define a 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. Jang teaches a similar aerosol generating device wherein the capsule is shaped to define a 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 (Figure 5, substrate portion 21 pressed so that the diameter is within a range of 10% to 50% of a diameter of the aerosol-generating article 2, [0057] and [0059], this would at least overlap with the claimed range of the ratio). Jang also teaches that pressing the aerosol-generating substrate allows for temperature differences between portions of the aerosol-generating substrate to be minimized and that the aerosol-generating substrate can be rapidly heated to a target temperature [0017].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Fuisz to incorporate the teachings of Jang to have pressed the substrate so that the diameter is within a range of 10% to 50% of the original diameter because doing so allows for temperature differences between portions of the aerosol-generating substrate to be minimized and allows for the aerosol-generating substrate to be rapidly heated to a target temperature, as recognized by Jang [0017].
Response to Arguments
Applicant’s arguments have been fully considered, and they are persuasive. Liu only suggests that the heating coil should have a same resistance value as a battery, but does not suggest that an overall resistance to the current of the capsule should be equal to that of the battery. Liu does not speak to the overall resistance of the capsule compared to that of the battery.
However, it is noted that the rejections have been updated based upon a corrected claim interpretation of the claims. See rejections above for details.
Conclusion
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/T.F.S./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
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