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 Claims
Claims 1-7, 8-18, and 20-22 are pending. Claims 9, 19 and 23-32 are canceled. Claims 6 and 17 are withdrawn. Claims 1 and 12 are amended. The remaining claims are either original or previously presented.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-12 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Capmpitelli et al. (US 2022/0046980 A1) teaches an insert comprising an outer layer with an inner surface and an outer surface comprising two compartments where at least one side of the first compartment and the second compartment is at least partially defined by the inner surface of the outer layer, and where the first compartment is separate from the first compartment defining a first insert airflow pathway, see ([0486], Fig 39).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-5, 7, 9-16, 18, and 20-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Davis et al. (WO 2020/025738 A2) in view of Campitelli et al. (US 2022/0046990 A1).
Regarding claims 1 and 12, Davis discloses:
A system for generating an inhalable aerosol, ([pg 1 lines 23-24]), the system comprising:
an insert, comprising:
a housing defining an inner chamber, ([pg 26 line 25] Fig 1 & 2 ref an outer tube 10a defining an interior space anticipating an inner chamber), the inner chamber comprising:
a first compartment configured to contain a non-liquid vaporizable material, the non-liquid vaporizable material forming a part of the inhalable aerosol as a result of being heated, ([pg 32 lines 1-8] Fig 1&2 ref 10b the first compartment being defined by the outer tube 10a and the material itself 10b, and the air gap 13, [pg 31 lines 3-5] the aerosolizable material may be an amorphous solid or other forms described, see also pg 8 lines 2-13 disclosing the aerosolizable material may be a gel); and
a second compartment that is separate from the first compartment of the inner chamber and defines a first insert airflow pathway, ([pg 32 lines 1-8] Fig 1&2 ref 13 the second compartment defined bounded by the outer aeroslizable material ref 10b, the inner aerosolizable material 11b and the spacing elements 12, 12a, 12b),
the second compartment, extending between an inlet and an outlet of the housing, (Fig 2 ref 17 indicating a mouth end outlet, the opposite end comprising the inlet), configured to allow formation of the inhalable aerosol therealong and delivery of the inhalable aerosol through the outlet for inhalation by a user, ([pg 32 lines 1-8] describing an external tube heater to heat the aerosolizable material on the interior of the outer tube, and an internal tube heater to heat the aerosolizable material on the exterior of the inner tube, where the aerosol from each mingle in the gap between the two (and are expected to be inhalable through the end of the end of the tube, , ([pg 36 lines 17-18] Fig 2, ref 17); and
a vaporizer body, (Fig 6) comprising:
a receptacle, (Fig 6 ref 110) configured to receive the insert; and
a device airflow pathway that extends into the receptacle between the insert and a side wall of the receptacle, (Fig 6 depicting a consumable expected to have an exterior gap between the sidewall of the receptacle, [pg 37 lines 32-33] suggesting the outer tube of the insert is nonporous, reasonably depicting a device airflow pathway in the absence of any other air inlet shown),
the device airflow pathway being upstream from and in fluid communication with the first insert airflow pathway, (Fig 6); and
wherein the system further comprises a heating element configured to heat the non-liquid vaporizable material when the insert is positioned in the compartment receptacle to generate the inhalable aerosol, ([pg 32 lines 1-8] describing exterior and interior tube heaters).
Davis does not disclose that the housing has an outer layer where the outer layer comprises an inner surface and an outer surface, where the housing comprises a first compartment and second compartment at least partially defined by the inner surface of the outer layer, the first and second compartment separate from each other defining a first insert airflow pathway.
Campitelli discloses a consumable for use with an apparatus for heating aerosolizable material to volatilize at least one component of the aerosolizable material, ([pg 1 lines 23-35]), and is thus within the inventor’s field of endeavor. Campitelli teaches an insert comprising an outer layer with an inner surface and an outer surface comprising two compartments where at least one side of the first compartment and the second compartment is at least partially defined by the inner surface of the outer layer, and where the first compartment is separate from the first compartment defining a first insert airflow pathway, see ([0486], Fig 39).
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It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the system of generating an aerosol of Davis, by applying the arrangement of parts taught by Campitelli. Davis discloses a system capable of aerosolizing material that may be in the form of a gel to form an aerosol. Campitelli teaches an alternative configuration of an insert reasonably expected to work with the system of Davis because it too comprises an aerosolizable material that comprises a gel. The difference between the two insert of Davis and Campitelli is primarily one of the arrangement of parts, which has been found to be obvious by the courts, MPEP 2144.04 VI C. Rearrangement of Parts, and the technique of providing the two types of aerosolizable material in the form of gel loaded onto threads. One of ordinary skill in the art would have been motivated to use the technique of Campitelli to provide the gel loaded onto threads within the article because the threaded gel would inherently provide more structure to the gel, and thus the article.
Regarding claims 2 and 13, modified Davis discloses the system of claim 1, further comprising an outlet positioned along a mouthpiece of the insert, ([pg 41 lines 13-16] Fig 2, ref 17 the end of the tube anticipating a mouthpiece in use as a location that the user draws aerosol from the consumable with their mouth).
Regarding claims 3 and 14, modified Davis discloses the system of claim 2, further comprising an inlet positioned along a first end of the insert, the first end being opposed to a second end including the mouthpiece, (Fig 2 having a mouthpiece end, ref 17, and opposite to that end, a first end with an inlet).
Regarding claims 4 and 15, modified Davis discloses the system of claim 1, wherein the first compartment and the second compartment extend approximately parallel to each other, See the annotating Fig 39 above depicting a cross-section of the article where the first and second compartment extend in the longitudinal direction of the article in parallel).
Regarding claims 5 and 16, modified Davis discloses the system of claim 1, wherein the inner chamber further includes a third compartment configured to contain additional non-liquid vaporizable material, the second compartment positioned between the first compartment and the third compartment, (Fig 2 ref 11b comprising additional solid vaporizable material, a layer on the inner tube 11a, the layer 11b, the inner tube 11a, and the air gap 13 bounding the layer and forming the second compartment).
Campitelli teaches two aerosolizable materials within an insert housing, see annotated Fig 39, above. Campitelli teaches a different configuration with three different gels, ([0464]). This embodiment is considered to teach providing three different compartments comprising gels. Campitelli also teaches applying gel on the interior surface of a tubular element, ([0468] Fig 23).
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to have further modified Davis according to the teachings of Campitelli. Modified Davis already provides compartments separated by the first airflow path, see annotated Fig 39 where the compartment labeled the second compartment is considered the third compartment for labeling purposes. Campitelli teaches using at least three gels in an article, where adding a third gel is considered an obvious modification to provide the additional flavoring by the third gel. Campitelli teaches a technique of layering a gel on an hollow interior surface of the tubular element. Applying this technique to the embodiment depicted in Fig 39 above would result in a second compartment defined by the interior tube 115 and the gel itself, where the second compartment is located between the first and third compartment.
Regarding claims 7 and 18, modified Davis discloses:
The system of claim 1, wherein the housing comprises aluminum foil, ([pg 34 lines 2] describing the outer layer of the tube as a carrier, and [pg 16 lines 19-20] indicating that in some embodiments the carrier comprises a metal foil such as aluminum foil).
Regarding claims 9 and 20, modified Davis discloses:
The system of claim 1, wherein the housing comprises a paper material, ([pg 34 lines 2] describing the outer layer of the tube as a carrier, and [pg 16 lines 8-12] indicating that in some embodiments the carrier comprises a paper-backed foil).
Regarding claims 10 and 21, modified Davis discloses:
The system of claim 1, wherein the non- liquid vaporizable material comprises a plant material and/or a plant material based product, ([pg 7-8 lines 30-5] the aerosolizable material may contain tobacco, known to be a plant material).
Campitelli also teaches that the gel may comprise plant material, ([0108]).
Regarding claims 11 and 22, Davis discloses:
The system of claim 1, wherein the non-liquid vaporizable material comprises a tobacco leaf and/or a reconstituted tobacco, ([pg 7-8 lines 30-5] the aerosolizable material may contain reconstituted tobacco).
Campitelli also teaches that the gel may comprise tobacco leaf and/or a reconstituted tobacco, ([0108]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Butin et al. (US 2022/0369714 A1). Butin discloses an aerosol generating device to heat an aerosol forming substrate received in a cavity of the device, ([Abstract] Fig 1-2) where the airflow to the distal end of the article enters the device between the article and the device at the proximal end of the device, and travels along the article, entering the distal end of the article inserted into the device, ([0307]).
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 DANIEL E VAKILI whose telephone number is (571)272-5171. The examiner can normally be reached Monday - Friday 7:30 am - 4:30 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H. Wilson can be reached at (571) 270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.E.V./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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