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 § 112
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 4, 8 and 10 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.
Claims 4, 8 and 10 recites the limitation "”the outlet of the housing”. There is insufficient antecedent basis for this limitation in 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.
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Claim(s) 1, 2, 4, 5, 9-11, 19 and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by JOHNSON et al. (US 2016/0227838)
With respect to claim 1¸ JOHNSON et al. discloses an electronic vaporizer device (Abstract) comprising a housing, 9 and 17 (Paragraphs [0030]-[0032]) comprising a heating element, 13, (Paragraphs [0037]-[0041]), and a housing opening, at 45 (Figure 2), wherein sides of the housing are non-linear (Figures 1-4 and 12); a mouthpiece attachment, 7, (Paragraphs [0007], [0030], [0031]) comprising a mouthpiece inlet and outlet (See annotated figure 13, below); and wherein the housing and mouthpiece attachment form an airflow path, 129, that extend from the housing opening, 35/35A (Paragraphs [0033], [0035], [0057]), through the mouthpiece inlet and out of the mouthpiece outlet (Figure 13; Paragraphs [0051] and [0057]).
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With respect to claim 2, JOHNSON et al. discloses that the housing has curved sides and flat base (Figure 3).
With respect to claim 4, JOHNSON et al. discloses that the housing has an upper end, 9, and a lower end, 17, (Paragraph [0032]) wherein the outlet of the outlet of the housing, at 45 (Paragraphs [0032]-[0033]; Figures 2 and 3) is at the upper end of the housing, wherein the mouthpiece attachment has an upper end, at 29, and a lower end, at 49, wherein the mouthpiece inlet is at the lower end of the mouthpiece attachment and the outlet is at an upper end thereof (Figure 13, annotated above). The mouthpiece attachment attaches to the upper end of the housing (Figures 1-3; Paragraph [0031]).
[AltContent: textbox (First diameter)][AltContent: arrow]With respect to claim 5, JOHNSON et al. shows that the mouthpiece attachment has a first diameter at the upper end and a second diameter at the lower end that is larger than the first diameter.
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With respect to claim 9¸ JOHNSON et al. discloses a liquid cavity, 30, that is configured to store water an is capable of filtering air flowing through the mouthpiece (Paragraph [0031], [0051]).
With respect to claim 10, JOHNSON et al. discloses an outlet to the housing, at 45, (Figures 2, 3 and 13) which necessarily provides access to the interior of the housing.
With respect to claim 11, JOHNSON et al. discloses a power supply, 26 (Paragraphs [0036] and [0037]; Figure 3), a charging port (Paragraph [0059]; Figures 14 and 15) a switch, 21 (Paragraphs [0032], [0047]), and a light source (Paragraph [0032]).
With respect to claim 19 and 20, JOHNSON et al. discloses an electronic vaporizer device (Abstract) comprising a housing, 9 and 17 (Paragraphs [0030]-[0032]) comprising a heating element, 13, (Paragraphs [0037]-[0041]), and a housing opening, at 45 (Figure 2), wherein sides of the housing are non-linear (Figures 1-4 and 12); a mouthpiece attachment, 7, (Paragraphs [0007], [0030], [0031]) comprising a mouthpiece inlet and outlet (See annotated figure 13, below); and wherein the housing and mouthpiece attachment form an airflow path, 129, that extend from the housing opening, 35/35A (Paragraphs [0033], [0035], [0057]), through the mouthpiece inlet and out of the mouthpiece outlet (Figure 13; Paragraphs [0051] and [0057]).
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The mouthpiece is detachably connected to the housing (Paragraphs [0054]).
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.
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Claim(s) 3, 12-16 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over JOHNSON et al. (US 2016/0227838).
With respect to claim 3, JOHNSON et al. generally shows that the mouthpiece has a conical shape and the housing generally has a spherical dome shape (Figures 1-3). The courts have generally held that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. See, In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). MPEP 2144.04, I.
With respect to claim 12, JOHNSON et al. discloses an electronic vaporizer device (Abstract) comprising a housing, 9 and 17 (Paragraphs [0030]-[0032]) comprising a heating element, 13, (Paragraphs [0037]-[0041]), and a housing opening, at 45 (Figure 2), wherein sides of the housing are non-linear (Figures 1-4 and 12); a mouthpiece attachment, 7, (Paragraphs [0007], [0030], [0031]) comprising a mouthpiece inlet and outlet (See annotated figure 13, below); and wherein the housing and mouthpiece attachment form an airflow path, 129, that extend from the housing opening, 35/35A (Paragraphs [0033], [0035], [0057]), through the mouthpiece inlet and out of the mouthpiece outlet (Figure 13; Paragraphs [0051] and [0057]).
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JOHNSON et al. discloses that the mouthpiece is detachably connected to the housing (Paragraphs [0054]). While JOHNSON et al. doesn’t explicitly disclose forming the mouthpiece and forming the housing, the act of providing the parts makes it obvious to one having ordinary skill in the art, that these parts must be formed first. Thus, it would have been obvious to form the mouthpiece attachment and to form the housing, as outlined above, for the purposes of providing these parts for assembly and eventual use.
With respect to claim 13, While JOHNSON et al. does not explicitly disclose packing the mouthpiece and housing, it would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to pack these components so that they can be provided for shipment and eventual use by the end user.
With respect to claim 14, JOHNSON et al. discloses that the housing has curved sides and flat base (Figure 3).
With respect to claim 15, JOHNSON et al. discloses that the housing has an upper end, 9, and a lower end, 17, (Paragraph [0032]) wherein the outlet of the outlet of the housing, at 45 (Paragraphs [0032]-[0033]; Figures 2 and 3) is at the upper end of the housing, wherein the mouthpiece attachment has an upper end, at 29, and a lower end, at 49, wherein the mouthpiece inlet is at the lower end of the mouthpiece attachment and the outlet is at an upper end thereof (Figure 13, annotated above). The mouthpiece attachment attaches to the upper end of the housing (Figures 1-3; Paragraph [0031]).
[AltContent: textbox (First diameter)][AltContent: arrow]With respect to claim 16, JOHNSON et al. shows that the mouthpiece attachment has a first diameter at the upper end and a second diameter at the lower end that is larger than the first diameter.
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With respect to claim 18, JOHNSON et al. discloses a power supply, 26 (Paragraphs [0036] and [0037]; Figure 3), a charging port (Paragraph [0059]; Figures 14 and 15) a switch, 21 (Paragraphs [0032], [0047]), and a light source (Paragraph [0032]).
The switch causes the heating element to heat using energy from the battery (Paragraphs [0032], [0047]-[0049], [0055]).
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Claim(s) 6-8 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over JOHNSON et al. (US 2016/0227838) and SAMPSON et al. (US 2016/0007649).
With respect to claims 6-8 and 17¸ JOHNSON et al. discloses that the mouthpiece is detachably connected to the housing (Paragraphs [0054]), but does not explicitly disclose that the mouthpiece is able to rotate about the housing. SAMPSON et al. discloses an inhalation device, Abstract). The mouthpiece includes a flavor cartridge and the mouthpiece is mechanically connected, and is rotatable with respect to the housing (e.g., control surface), to adjust the amount air that passes through the flavor cartridge thereby allowing the user to inhale an amount of flavor (Paragraphs [0076], [0087], [0110]-[0111]; Figures 1-4). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide the device of JOHNSON et al. with a rotatable mouthpiece, mechanically coupled to the housing, as taught by SAMPSON et al. so that the user can adjust the amount of flavor inhales.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEX B EFTA whose telephone number is (313)446-6548. The examiner can normally be reached 8AM-5PM EST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Tucker can be reached at 571-272-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALEX B EFTA/Primary Examiner, Art Unit 1745
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