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 .
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-5 and 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over Akiyama et al. (US 2015/0374038).
Claims 1, 2, and 17. Akiyama et al. discloses a flavor inhaler comprising a tubular member 30 having a supporting end portion 30A and a mouthpiece side end portion 30B. The supporting end portion 30A that holds the heat source 50 ([0047]). The flavor inhaler includes a heat conduction member 200 and a cup member 300 (outer housing) in addition to the tubular member 30 and the heat source 50 (Figure 10; [0076]). The cup member 300 (outer housing) has a cup shape (having an open end and closed end), houses the member 32 (substrate portion), and holds the heat source 50. The cup member 300 is configured to be inserted into the supporting end portion 30A of the tubular member 30 (thus, the cup member 300 is removable and replaceable). In particular, the cup member 300 is configured by a tubular side wall 310 and a bottom plate 320 (at the closed end) covering one opening configured by the side wall 310. The member 32 and the heat source 50 are inserted into the cup member 300 from one opening configured by the side wall 310. The bottom plate 320 has a plurality of air holes 320A (one or more apertures) through which air passes (Figures 10 and 11; [0078]). Member 32 is configured by a powdery and granular tobacco leaf (aerosol precursor composition), for example (Figure 10; [0079]).
Akiyama et al. teaches that the heat conduction member 200 is preferably formed of a metal material having an excellent heat conductivity, such as aluminum ([0077]) and that the thickness of the side wall 310 of cup member 300 (outer housing) is preferably 0.1 mm or less and a heat capacity of the side wall 310 is small so that the heat generated from the heat source 50 is efficiently transmitted to the flavor source ([0080]). Akiyama et al. does not explicitly disclose that the cup member 300 (outer housing) comprises a metal material. It would have been obvious to one of ordinary skill in the art before the effective filing date to construct the cup member 300 (outer housing) from aluminum since it has a low heat capacity and excellent heat conductivity such that it would efficiently transmit heat generated from the heat source 50 to the flavor source. Furthermore, selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination (See MPEP § 2144.07).
Claim 3. Akiyama et al. discloses that the member 32 (substrate portion) comprises various flavor ingredients such as menthol (non-tobacco material) ([0048]).
Claim 4. Akiyama et al. discloses that the heat source 50 is a combustion body such as a carbon heat source ([0053]).
Claim 5. Akiyama et al. discloses that the heat source 50 has a hollow 51 (passage) extending along a predetermined direction from the non-insertion end portion 50A toward the insertion end portion 50B (Figure 4; [0054]).
Claim 14. Akiyama et al. discloses that the thickness of the side wall 310 is preferably 0.1 mm or less. As a result, a heat capacity of the side wall 310 is small, and the heat generated from the heat source 50 is efficiently transmitted to the flavor source. Further, the side wall 310 is preferably configured by SUS (for example, SUS 430). As a result, even when the thickness of the side wall 310 is 0.1 mm or less, it is possible to obtain a sufficient strength as the strength of the side wall 310 and possible to maintain the shape of the cup member 300 (cup is made from a rigid material) (Figures 10 and 11; [0080]).
Claim 15. Akiyama et al. discloses that the cup member 300 is configured by a tubular side wall 310 (Figure 11; [0078]).
Claim 16. Akiyama et al. discloses that the heat source 50 is a combustion body, and thus, the non-insertion end portion 50A configures an ignition end portion (Figure 4; [0054]).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Akiyama et al. (US 2015/0374038) in view of Clearman et al. (US 5345955).
Claim 6. Akiyama et al. discloses the cartridge of claim 1 wherein the non-insertion end portion 50A (first end) of heat source 50 may have a notch 52 (peripheral groove) in communication with the hollow 51 to facilitate ignition of the heat source 50 ([0054]; Figure 4). Akiyama et al. does not explicitly disclose that the notch 52 extends to the insertion end portion 50B (second end).
Clearman et al. discloses a composite fuel element for a smoking article (Abstract). The fuel element 10 has a plurality of grooves 125 extending along its periphery (Column 9, lines 24-42; Figure 10).
Clearman et al. discloses that the grooves 125 in the fuel element 10 aid in lighting the fuel and in heat transfer characteristics of the fuel (Column 9, lines 24-42). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the heat source 50 of Akiyama to include longitudinally extending grooves to aid in lighting the heat source and in the heat transfer characteristics of the fuel as taught by Clearman et al.
Claims 7-10 are rejected under 35 U.S.C. 103 as being unpatentable over Akiyama et al. (US 2015/0374038).
Claims 7, 8, and 9. Akiyama et al. discloses the cartridge of claim 1 comprising member 32 (substrate portion). Member 32 is configured by a powdery and granular tobacco leaf (aerosol precursor composition), for example (Figure 10; [0079]). While Akiyama et al. only discloses a single member 32, mere duplication of parts has no patentable significance unless a new and unexpected result is produced (See MPEP §2144.04(VI)(B)). In this case, it would have been obvious to one of ordinary skill in the art that the cup member 300 (outer housing) may hold a second member 32 (substrate portion) adjacent the first member 32 so that the user can select a particular dosage of substrate material, or combine different substrate materials in the cup member 300 (outer housing) to use at the same time. Furthermore, it would have been obvious that the additional members 32 (substrate portions) may also comprise a powdery and granular tobacco leaf (Figure 10; [0079]) and various flavor ingredients such as menthol (non-tobacco material) ([0048]).
Claim 10. Akiyama et al. discloses the cartridge of claim 1 wherein the air holes 320a are circular (Figure 11) and sized to be smaller than a particle diameter of the tobacco leaf of the member 32 ([0079]). Akiyama et al. does not disclose that the air holes may comprise a pair of elongate rounded slots. However, changes in shape are a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed shape is significant (See MPEP §2144.04(IV)(B)). It would have been obvious to one of ordinary skill in the art before the effective filing date that the air holes 320a may be configured as any shape, including a pair of elongate rounded slots, so long as they are sized to be smaller than a particle diameter of the tobacco leaf of the member 32.
Claims 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Akiyama et al. (US 2015/0374038) in view of Stolz et al. (US 2014/0283860).
Claim 11. Akiyama et al. discloses the cartridge of claim 1 but does not explicitly disclose a barrier located between the heat source and the first end of the substrate material.
Stolz et al. discloses a smoking article 2 comprising a combustible carbonaceous heat source 4, an aerosol-forming substrate 6, an elongate expansion chamber 8 and a mouthpiece 10 in abutting coaxial alignment (Figure 1; [0105]). A heat-conducting element 22 (barrier) consisting of a tube of aluminium foil surrounds and is in contact with a rear portion 4b of the combustible carbonaceous heat source 4 and an abutting front portion 6a of the aerosol-forming substrate 6 ([0109]; Figure 1).
Stolz et al. teaches that the front portion 6a of the aerosol-forming substrate 6 is heated primarily by conduction through the abutting non-combusting rear portion 4b of the combustible carbonaceous heat source 4 and the heat-conducting element 22 (Figure 1; [0111]). It would have been obvious to one of ordinary skill in the art before the effective filing date to include a heat-conducting element 22 (barrier) between the member 32 (substrate portion) and heat source 50 of Akiyama et al. so that a greater portion of member 32 can be heated by conduction than just the end face of member 32 which abuts heat source 50.
Claim 12. Modified Akiyama et al. discloses central airflow channel 16 which extends through heat-conducting element 22 (barrier) (Stolz Figure 1).
Claim 13. Modified Akiyama et al. discloses that heat-conducting element 22 (barrier) consists of a tube of aluminium foil (Stolz [0109]).
Response to Arguments
Applicant's arguments filed 12/18/25 have been fully considered but they are not persuasive. Applicant argues that Akiyama does not teach a removable cartridge for use with a reusable holder. Applicant asserts that Akiyama does not teach removing or replacing the cup member 300 after it is installed. Examiner disagrees, as Akiyama states that “the cup member 300 is configured to be inserted into the supporting end portion 30A of the tubular member 30” ([0078]). For the cup member 300 to be inserted into the supporting end portion 30A of the tubular member 30, it must first be separate, and therefore removable, from the tubular member 30.
Examiner maintains that nothing in Akiyama suggests that the cup member 300 is unable to be removed after it has been inserted into the supporting end portion 30A of the tubular member 30 (i.e. no disclosure of an adhesive or other means for permanently securing cup member 300 in tubular member 30). Examiner argues that Applicant’s suggestion that the cup member 300 is not removable and replaceable, is reading a feature into Akiyama that is not disclosed or suggested anywhere in the reference. Thus, Examiner finds that the cup member 300 is removable and replaceable since Akiyama teaches that the cup member 300 is a separate element which is inserted into the tubular member 30.
Conclusion
THIS ACTION IS MADE FINAL. 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 Katherine A Will whose telephone number is (571)270-0516. The examiner can normally be reached Monday-Friday 10:00AM-6:00PM(EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Wilson can be reached on (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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/KATHERINE A WILL/Primary Examiner, Art Unit 1747