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 5/22/2026 have been accepted. Claims 1-2, 4-6 are amended. Claims 3 and 7 are canceled. Claims 1-2, 4-6, 8-11 are pending. Applicant’s amendments to the claims have overcome the 112(b) rejections previously set forth in the non-final office action mailed 2/24/2026. Applicant’s amendments to the claims have overcome the objections previously set forth.
Priority
Applicant’s Remarks argue that the instant application has an effective filing date of September 7, 2022, which would be the filing date of the foreign priority application CN202222385049.6.
However, Applicant has not perfected foreign priority such that this application is not entitled to this earlier effective filing date. Applicant cannot rely upon the certified copy of the foreign priority application to overcome this rejection because a translation of said application has not been made of record in accordance with 37 CFR 1.55. When an English language translation of a non-English language foreign application is required, the translation must be that of the certified copy (of the foreign application as filed) submitted together with a statement that the translation of the certified copy is accurate. See MPEP §§ 215 and 216. No such translation nor statement have been filed. The effective filing date of the application is thus 9/5/2023.
Applicant argues on pg. 7 of their Remarks that reference Liu (US2022/0287363A1) does not qualify as prior art. The Examiner disagrees. Liu qualifies as prior art under 102(a)(1) with a publication date of 9/15/2022. Liu also qualifies as prior art under 102(a)(2) with an earliest effective filing date of 3/11/2021 (as the earlier foreign filing date is claimed by the US PGPUB AND the foreign application describes the same subject matter being relied upon). And further, none of the 102(b)(2) exceptions apply to Liu, such that this 102(a)(2) date is not overcome.
Applicant argues on pg. 10 of the remarks that Xiao (US2023/0088232A1) does not qualify as prior art due to the 102(b)(2)(C) exception. Applicant’s statements regarding the common ownership are acknowledged. However, Xiao remains eligible under 102(a)(1). Xiao has a publication date of 3/23/2023, while the application’s effective filing date is 9/5/2023. Xiao and the instant application share no inventors, such that there is no presumption that the disclosure was obtained by the inventor.
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.
Claims 1-2, 4-6, 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US2022/0287363A1, of record) in view of Xiao (US2023/0088232A1, of record).
Regarding claim 1, Liu teaches a vaporizer (atomizer as shown in Fig. 1), comprising:
a shell (main body “1” as in Fig. 4);
a base inserted into a lower end of the shell (the sealing member “3” and the associated structure is considered the base, which is disposed in “1” [0034, Fig. 4]);
a vent tube passing through the shell (airflow channel “104” and air duct “101” passes through the main body “1” [Fig. 4, 0031]);
a liquid storage cavity formed between an outer wall surface of the vent tube and an inner wall surface of the shell (e-liquid chamber “103” is clearly formed between the vent tube and the base [see Fig. 4]),
a vaporization core provided in the vent tube and in communication with the liquid storage cavity in a liquid guide manner (the heating element “2” is disposed in the inner passage and in the air duct to atomize the e-liquid [0045], wherein as in Fig. 4 this atomization section clearly is clearly located at least partially within the vent tube. The e-liquid moves from the e-liquid chamber “103” to the heating element to be atomized [0045]),
wherein a lower end of the vent tube is inserted into the base (as in Fig. 4, the vent tube 104/101 is clearly inserted into the sealing member “3” and its surrounding associated structure),
at least one vent channel communicating the liquid storage cavity with an outside, and the at least one vent channel is formed between the base and the shell and/or the base and the vent tube (“External air flows along the airflow channel, through the air vent, and into the e-liquid chamber, to supply air into the e-liquid tank. The air vent allows only air to flow through while preventing the passage of the e-liquid. Preferably, the air vent communicates with atmosphere.” [0032]. As in Fig. 4 and 8, the device comprises external air that enters through the air duct, and there are formed grooves “102” and “105” which communicate this external air (atmospheric) into the e-liquid chamber [0038-0040]. The vent channel may be considered to be “102” and/or “105”, where both of these channels are located between the base and the vent tube, and at least partially located between the base and the shell as well).
Liu teaches a vaporizer which may have external air flow entering the device from a bottom of the device [see Fig. 7]. This air flow would necessarily be in communication with the vent channel, as both are in air communication with the vent tube 101/104, of which the vent channels “102” and “105” are in communication with. The device may have a lower end surface of the base extending upwards to form an electrode hole (see Figs. 3-4, wherein the bottom surface is clearly raised, and where electrodes “6” may be formed). This section would necessarily be in communication with the mounting hole through at least the atomization location.
Liu does not explicitly have the vent gap formed at locations where the electrode column passes through the electrode hole. However, it is well known in the art for air flow channels to be formed around electrodes/electrode holes, such that it would have been obvious to modify Liu so as to have the electrode/vent gap/vent channel be in similar locations. Xiao teaches a vaporizer (Fig. 2) with a liquid storage cavity “20”, a vaporization channel “35”, a shell “10”, electrode “70”, and a base portion that connects with the shell/vent tube [see Fig. 2]. The electrode is located in the base portion. External air enters the device so as to flow through a hollow channel of the first electrode, and flows through an insulation member which is annularly formed around the electrode “70” [0020, 0046]. The air inlet of the external air may be located on the side of the base/electrode hole [see “215” in Fig. 2], and there is further an air channel “92” and “90” leading to the vent channels that go through the electrode and the insulating member around the electrode [0051, Fig. 2].
One of ordinary skill in the art would have found it obvious to modify the electrode/electrode hole/vents of Liu so as to have airflow through the electrode and insulating sleeve as suggested by Xiao. One would have been motivated in order to allow for multiple branches or air flow, to optimize the vaporization effect [0020, 0046]. And when such electrode airflows are utilized, the vent channel of Liu would necessarily communicate with the vent gap/air flow of Xiao as both have the air flow communicating through the air outlet channel leaving the vaporizer. And additionally, as vent air flows are extremely common within the art of vapes as demonstrate here, a rearrangement of parts so as to utilize different air flow paths would have been obvious to have the air flow move in a variety of different paths, as the movement of the air flow from the external air to the inside of the device would not have modified the operation of the device nor have provided any additional benefits beyond what is demonstrated in Liu/Xiao. See MPEP 2144.04 VI.C.
Regarding claim 2, modified Liu suggests the vaporizer wherein an upper end surface of the base extends downward to form a mounting hole (as in Figs. 3-4 for example, the top and middle of “3” clearly extends downward and is what is considered the mounting hole),
Wherein the vent tube comprises an accommodating section accommodated in the mounting hole (the accommodating section of the vent tube is considered to be the portion of 101/104 which is inserted into the mounting hole of the base, i.e., the lowest portion thereof which is clearly located within “3”, as in Figs. 3-4),
Wherein an outer wall surface of the accommodating section and/or a hole wall surface of the mounting hole is recessed to form at least one vent channel (grooves “102” and “105” are formed between the base and the vent tube, which are formed between the accommodating section and the wall surface of the mounting hole, such that these vent channels of “102” and “105” would necessarily have a recessed surface in at least one of these surfaces to form the grooves).
Regarding claim 4, modified Liu makes obvious an air inlet hole provided in a hole wall of the electrode hole to communicate the vent gap to the outside (as in both Liu Fig 7 comprising an air inlet passage for allowing external air to enter, and in Xiao providing air inlet “215” on an outer wall surface for external air to enter, modified Liu clearly would have an air inlet hole provided which communicates with the vent gap).
Regarding claim 5, modified Liu makes obvious an insulating sleeve between an outer wall surface of the electrode column and a hole wall surface of the electrode hole (as in the rejection of claim 1 above, Xiao makes obvious having an insulation member “50” located around and partly sleeved around the electrode “70” [Fig. 2, 0046]. The insulating member insulates the electrode, and is clearly located between the outer surface of the electrode and a hole surface of the electrode hole.), wherein at least one vent passage is formed on the insulating sleeve and the vent gap is in communication with the outside via the at least one vent passage (external air flow can enter the vaporization channel through the air channel between the first electrode “70” and the insulating member “50” [0046], such that there may be increased airflow and improved vaporization [0046]. In this manner, the vent gap and the vent passage would clearly be in communication with each other and with the outside air, such that the claim would reasonably be satisfied under the broadest reasonable interpretation thereof).
Regarding claim 6, modified Liu makes obvious a diameter of the mounting hole is larger than a diameter of the electrode hole (as in Figs. 3-4 of Liu, the upper diameter of the base of the mounting hole is clearly larger than that of the lower diameter around the electrode hole of the base), and wherein the diameter of the mounting hole matches an outer diameter of the accommodating section (as especially in Fig. 4, because the mounting hole and the accommodating section meet and “fit in” together, the outer diameters would clearly necessarily be substantially the same so as for this accommodation to fit).
Regarding claim 8, modified Liu suggests the vaporizer wherein the at least one vent channel extends in a linear shape (as in Figs. 3-5, each of the individual grooves of “102” and “105” appear to be in a largely linear shape, such that when considered individually that are in a linear shape).
Regarding claim 9, modified Liu suggests the vaporizer wherein the at least one vent channel extends in a nonlinear shape (as in Figs. 3-5, when the vent channel is considered to be the combination of “102” and “105” together, the overall shape would be nonlinear as the direction of these grooves/vents clearly changes direction. And alternatively, regarding the change of shape of these grooves, it would have been obvious for the person of ordinary skill in the art to utilize other shapes beyond the shapes explicitly shown in Liu. “The court held that the configuration of the claimed disposable plastic nursing container was 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 container was significant.” See MPEP 2144.04 IV. B. In this case, the specific shape of the vent channel has not been demonstrated by Applicant to be of particular significance/importance, as the shape of the vent channel in the written specification merely provides alternatives without any supposed discussion or results regarding the benefits of using any shape versus any other. As such, it would have been obvious for the person of ordinary skill in the art to utilize any of a variety of shapes of these grooves/vent channels so as to satisfy the overall design criteria of the vaporizer).
Regarding claim 10, modified Liu suggests the vaporizer wherein the nonlinear shape comprises at least one of a zigzag, helical, or curved shape (as in Figs. 3-5, the grooves “102” and “105” together go in differing directions, such that the vent channel comprising both of these grooves may be considered to be “zigzag” under the broadest reasonable interpretation thereof, as the vent channel clearly has alternate left/right turns which is a defining feature of a zigzag. And alternatively, regarding the change of shape of these grooves, it would have been obvious for the person of ordinary skill in the art to utilize other shapes beyond the shapes explicitly shown in Liu. “The court held that the configuration of the claimed disposable plastic nursing container was 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 container was significant.” See MPEP 2144.04 IV. B. In this case, the specific shape of the vent channel has not been demonstrated by Applicant to be of particular significance/importance, as the shape of the vent channel in the written specification merely provides alternatives without any supposed discussion or results regarding the benefits of using any shape versus any other. As such, it would have been obvious for the person of ordinary skill in the art to utilize any of a variety of shapes of these grooves/vent channels so as to satisfy the overall design criteria of the vaporizer).
Regarding claim 11, modified Liu suggests an electronic vaporization device comprises the vaporizer of claim 1 (as in the rejection of claim 1 above, Liu teaches the vaporizer of claim 1. This vaporizer is made in an electronic cigarette [title, 0030]).
Claims 1-2, 4-6, 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US2022/0287363A1, of record) in view of Arnell (US11109620B1) or Liu2 (US2016/0338411A1).
Regarding claim 1, Liu teaches a vaporizer (atomizer as shown in Fig. 1), comprising:
a shell (main body “1” as in Fig. 4);
a base inserted into a lower end of the shell (the sealing member “3” and the associated structure is considered the base, which is disposed in “1” [0034, Fig. 4]);
a vent tube passing through the shell (airflow channel “104” and air duct “101” passes through the main body “1” [Fig. 4, 0031]);
a liquid storage cavity formed between an outer wall surface of the vent tube and an inner wall surface of the shell (e-liquid chamber “103” is clearly formed between the vent tube and the base [see Fig. 4]),
a vaporization core provided in the vent tube and in communication with the liquid storage cavity in a liquid guide manner (the heating element “2” is disposed in the inner passage and in the air duct to atomize the e-liquid [0045], wherein as in Fig. 4 this atomization section clearly is clearly located at least partially within the vent tube. The e-liquid moves from the e-liquid chamber “103” to the heating element to be atomized [0045]),
wherein a lower end of the vent tube is inserted into the base (as in Fig. 4, the vent tube 104/101 is clearly inserted into the sealing member “3” and its surrounding associated structure),
at least one vent channel communicating the liquid storage cavity with an outside, and the at least one vent channel is formed between the base and the shell and/or the base and the vent tube (“External air flows along the airflow channel, through the air vent, and into the e-liquid chamber, to supply air into the e-liquid tank. The air vent allows only air to flow through while preventing the passage of the e-liquid. Preferably, the air vent communicates with atmosphere.” [0032]. As in Fig. 4 and 8, the device comprises external air that enters through the air duct, and there are formed grooves “102” and “105” which communicate this external air (atmospheric) into the e-liquid chamber [0038-0040]. The vent channel may be considered to be “102” and/or “105”, where both of these channels are located between the base and the vent tube, and at least partially located between the base and the shell as well).
Liu teaches a vaporizer which may have external air flow entering the device from a bottom of the device [see Fig. 7]. This air flow would necessarily be in communication with the vent channel, as both are in air communication with the vent tube 101/104, of which the vent channels “102” and “105” are in communication with. The device may have a lower end surface of the base extending upwards to form an electrode hole (see Figs. 3-4, wherein the bottom surface is clearly raised, and where electrodes “6” may be formed). This section would necessarily be in communication with the mounting hole through at least the atomization location.
Liu does not explicitly have the vent gap formed at locations where the electrode column passes through the electrode hole. However, it is well known in the art for air flow channels to be formed around electrodes/electrode holes, such that it would have been obvious to modify Liu so as to have the electrode/vent gap/vent channel be in similar locations (and which would consequently be in communication with the vent channel). Arnell, for example, discloses in Fig. 15 a vaporizer which includes a heating chamber “532” with a heating wire “536” and a heater base “534” which is made of a ceramic material. The base of the vaporizer includes a pair of electrodes “540” and “542”, which are surrounded by an electrode insulator body “538”. The electrode/insulator body is formed with a vent opening “5382” that corresponds to a vent opening through the base, and this is clearly considered to be a vent gap formed on wall surface of the electrode under the broadest reasonable interpretation thereof [Col 15-16, Fig. 15].
One of ordinary skill in the art would have found it obvious to modify the electrode/electrode hole/vents of Liu so as to have airflow through the electrode and the insulating sleeve as suggested by Arnell. One would have been motivated so as to allow for the venting of air that results from heating and so as to provide improved airflow through the vaporizer [Col 15-16]. And when the electrode contains a vent gap which communicates with the atomization assembly [see Fig. 15 of Arnell for example], said vent gap would necessarily also be in communication with the vent channels described in Liu, through the air of the air inlet to the vaporization chamber and through the air of the vent pipe [see Liu Figs. 7-8]. And additionally, as vent air flows are extremely common within the art of vapes as demonstrate here, a rearrangement of parts so as to utilize different air flow paths would have been obvious to have the air flow move in a variety of different paths, as the movement of the air flow from the external air to the inside of the device would not have modified the operation of the device nor have provided any additional benefits beyond what is demonstrated in Liu/Arnell. See MPEP 2144.04 VI.C.
In the alternate, Liu2 teaches a vaporizer [Fig. 1]. The vaporizer includes electrodes including the lower electrode “30”/”40”, where the lower electrode “30” has a vent channel “300” which communicates with the air flow channel “102” and wherein air enters through the air inlet “304” [0044-0047], wherein this air flow portion surrounding the electrode may be considered the vent gap. The electrodes are surrounded by insulation ring [0043]. One of ordinary skill in the art would have found it obvious to modify the electrode/electrode hole/vents of Liu so as to have airflow through the electrode and insulating sleeve as suggested by Liu2. One would have been motivated so as to allow for improved air flow through the atomization chamber and to prevent the non-vaporized smoke oil from falling to the interior [0044-0047]. And as the electrode vent/air channel of Liu2 would communicate with the atomization chamber and the air flow channel [Fig. 3, 0038, 0044-0047], the electrode vent as suggested by Liu2 would necessarily also be in communication through the vent channels of Liu. And additionally, as vent air flows are extremely common within the art of vapes as demonstrate here, a rearrangement of parts so as to utilize different air flow paths would have been obvious to have the air flow move in a variety of different paths, as the movement of the air flow from the external air to the inside of the device would not have modified the operation of the device nor have provided any additional benefits beyond what is demonstrated in Liu/Liu2. See MPEP 2144.04 VI.C.
Regarding claim 2, modified Liu suggests the vaporizer wherein an upper end surface of the base extends downward to form a mounting hole (as in Figs. 3-4 for example, the top and middle of “3” clearly extends downward and is what is considered the mounting hole),
Wherein the vent tube comprises an accommodating section accommodated in the mounting hole (the accommodating section of the vent tube is considered to be the portion of 101/104 which is inserted into the mounting hole of the base, i.e., the lowest portion thereof which is clearly located within “3”, as in Figs. 3-4),
Wherein an outer wall surface of the accommodating section and/or a hole wall surface of the mounting hole is recessed to form at least one vent channel (grooves “102” and “105” are formed between the base and the vent tube, which are formed between the accommodating section and the wall surface of the mounting hole, such that these vent channels of “102” and “105” would necessarily have a recessed surface in at least one of these surfaces to form the grooves).
Regarding claim 4, modified Liu makes obvious an air inlet hole provided in a hole wall of the electrode hole to communicate the vent gap to the outside (as in both Liu Fig 7 comprising an air inlet passage for allowing external air to enter, and in Arnell providing air inlets on an outer wall surface for external air to enter, modified Liu clearly would have an air inlet hole provided which communicates with the vent gap to the outside atmosphere. And in the alternate, Liu2 additionally provides an air inlet “304” of the vent channel of the lower electrodes wherein outside air would travel to the electrode channel [0044-0047]. And additionally, as vent air flows are extremely common within the art of vapes as demonstrate here, a rearrangement of parts so as to utilize different air flow paths would have been obvious to have the air flow move in a variety of different paths, as the movement of the air flow from the external air to the inside of the device would not have modified the operation of the device nor have provided any additional benefits beyond what is demonstrated in Liu/Arnell or Liu/Liu2. See MPEP 2144.04 VI.C.).
Regarding claim 5, modified Liu makes obvious an insulating sleeve between an outer wall surface of the electrode column and a hole wall surface of the electrode hole (as in the rejection of claim 1 above, Arnell makes obvious having an insulation body “538” located around the electrodes [Cols 5-6]. As in Fig. 15, the insulation body “538” insulates the electrodes and a clearly located between the outer surface of the electrode and the hole surface of the hole), wherein at least one vent passage is formed on the insulating sleeve and the vent gap is in communication with the outside via the at least one vent passage (the insulation body “538” may have vent passage [Cols 5-6, Fig. 15], and wherein external air flow can enter the vaporization channel through the openings 5242 and through the openings 5382 [Cols 5-6]. Wherein, these vents would clearly be in communication with each other and with the outside air, such that the claim would reasonably be satisfied under the broadest reasonable interpretation thereof. And in the alternate, Liu2 additionally makes obvious having an insulation ring “50” located around the lower electrodes wherein this would be located between an outer surface of the electrode column and hole wall surface [0043-0047, Fig. 3]. And wherein Liu2 suggests that there may be formed the vent channel and air inlet/air inlet hole which communicates with the outside [0043-0047], Liu2 also reasonably suggests the vent passage formed on the insulating sleeve. And additionally, as vent air flows are extremely common within the art of vapes as demonstrate here, a rearrangement of parts so as to utilize different air flow paths would have been obvious to have the air flow move in a variety of different paths, as the movement of the air flow from the external air to the inside of the device would not have modified the operation of the device nor have provided any additional benefits beyond what is demonstrated in Liu/Arnell or Liu/Liu2. See MPEP 2144.04 VI.C.).
Regarding claim 6, modified Liu makes obvious a diameter of the mounting hole is larger than a diameter of the electrode hole (as in Figs. 3-4 of Liu, the upper diameter of the base of the mounting hole is clearly larger than that of the lower diameter around the electrode hole of the base), and wherein the diameter of the mounting hole matches an outer diameter of the accommodating section (as especially in Fig. 4, because the mounting hole and the accommodating section meet and “fit in” together, the outer diameters would clearly necessarily be substantially the same so as for this accommodation to fit).
Regarding claim 8, modified Liu suggests the vaporizer wherein the at least one vent channel extends in a linear shape (as in Figs. 3-5, each of the individual grooves of “102” and “105” appear to be in a largely linear shape, such that when considered individually that are in a linear shape).
Regarding claim 9, modified Liu suggests the vaporizer wherein the at least one vent channel extends in a nonlinear shape (as in Figs. 3-5, when the vent channel is considered to be the combination of “102” and “105” together, the overall shape would be nonlinear as the direction of these grooves/vents clearly changes direction. And alternatively, regarding the change of shape of these grooves, it would have been obvious for the person of ordinary skill in the art to utilize other shapes beyond the shapes explicitly shown in Liu. “The court held that the configuration of the claimed disposable plastic nursing container was 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 container was significant.” See MPEP 2144.04 IV. B. In this case, the specific shape of the vent channel has not been demonstrated by Applicant to be of particular significance/importance, as the shape of the vent channel in the written specification merely provides alternatives without any supposed discussion or results regarding the benefits of using any shape versus any other. As such, it would have been obvious for the person of ordinary skill in the art to utilize any of a variety of shapes of these grooves/vent channels so as to satisfy the overall design criteria of the vaporizer).
Regarding claim 10, modified Liu suggests the vaporizer wherein the nonlinear shape comprises at least one of a zigzag, helical, or curved shape (as in Figs. 3-5, the grooves “102” and “105” together go in differing directions, such that the vent channel comprising both of these grooves may be considered to be “zigzag” under the broadest reasonable interpretation thereof, as the vent channel clearly has alternate left/right turns which is a defining feature of a zigzag. And alternatively, regarding the change of shape of these grooves, it would have been obvious for the person of ordinary skill in the art to utilize other shapes beyond the shapes explicitly shown in Liu. “The court held that the configuration of the claimed disposable plastic nursing container was 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 container was significant.” See MPEP 2144.04 IV. B. In this case, the specific shape of the vent channel has not been demonstrated by Applicant to be of particular significance/importance, as the shape of the vent channel in the written specification merely provides alternatives without any supposed discussion or results regarding the benefits of using any shape versus any other. As such, it would have been obvious for the person of ordinary skill in the art to utilize any of a variety of shapes of these grooves/vent channels so as to satisfy the overall design criteria of the vaporizer).
Regarding claim 11, modified Liu suggests an electronic vaporization device comprises the vaporizer of claim 1 (as in the rejection of claim 1 above, Liu teaches the vaporizer of claim 1. This vaporizer is made in an electronic cigarette [title, 0030]).
Response to Arguments
Applicant’s arguments have been fully considered but they are not persuasive.
Applicant argues throughout the remarks about the prior art dates of both Liu and Xiao
The Examiner respectfully disagrees, and the full discussion regarding priority dates are located in the “Priority” section above.
Applicant argues on pg. 9-10 of their filed remarks that Liu does not disclose a vent gap around an electrode column, and that Xiao does not have an electrode column that communicates with a liquid storage cavity with an outside.
The Examiner respectfully disagrees. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Applicant only considers the references of Liu and Xiao individually and does not consider what one of ordinary skill in the art would find obvious given the teachings of Liu and Xiao, nor does Applicant respond in any way to the combination in the rejections. As detailed in the rejections, while Liu does not explicitly have the vent gap formed at locations where the electrode column passes through an electrode hole, Xiao does suggest such a structure (with external air entering through a first electrode hole) with the benefits of allowing multiple branches of air flow to optimize the vaporization effect. The rejection is based upon the combination of Liu and Xiao which reasonably suggests the claimed structure. And further, as vent air flows are extremely common within the art of vapes as demonstrate here, a rearrangement of parts so as to utilize different air flow paths would have been obvious to have the air flow move in a variety of different paths, as the movement of the air flow from the external air to the inside of the device would not have modified the operation of the device nor have provided any additional benefits beyond what is demonstrate in Liu/Xiao. See MPEP 2144.04 VI.C.
Applicant argues on pg. 11 of their filed remarks that the vent channel shape is not a design choice, as the nonlinear shape increases the path length for the liquid medium which increases liquid resistance while permitting gas flow for pressure equalization, and cites to paragraph 0075.
The Examiner respectfully disagrees. It does not appear that the instant specification supports the position provided by Applicant. The citation to paragraph 0075 includes no discussion regarding a linear or nonlinear shape of the vent channels. Paragraph 75 merely discusses how the “cross-sectional dimension of the vent channel… are set reasonably”, with regard to a variety of factors, but this would apply evenly to a linear or nonlinear vent channel (wherein paragraph 0074 and the rest of the specification treats the shape thereof as merely possible alternatives). The specification does not in any way state that a nonlinear shape increases a path length which leads to the purported effects stated by Applicant. As there is no evidence for Applicant’s assertions in the written specification as originally filed (such that these arguments are opinions and not facts), the Applicant’s arguments are found unconvincing regarding the obviousness of changing a shape of the vent channel.
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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/T.F.S./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
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