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 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 a “structured water”. Instant published paragraph [0005] discusses structured water as also referring to small molecular group water, micro cluster water, small cluster water, or micro clustered water; and within 100 hertz abbreviated as Hz, the structured water being composed of 5-7 water molecules.
The courts have generally held that the meaning of every term used in a claim should be apparent from the prior art or from the specification and drawings at the time the application is filed. Claim language may not be "ambiguous, vague, incoherent, opaque, or otherwise unclear in describing and defining the claimed invention." In re Packard, 751 F.3d 1307, 1311, 110 USPQ2d 1785, 1787 (Fed. Cir. 2014). Courts have recognized that it is not only permissible, but often desirable, to use new terms that are frequently more precise in describing and defining the new invention. In re Fisher, 427 F.2d 833, 166 USPQ 18 (CCPA 1970). If the claims, read in light of the specification, reasonably apprise those skilled in the art both of the utilization and scope of the invention, and if the language is as precise as the subject matter permits, the statute (35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph) demands no more. Packard, 751 F.3d at 1313, 110 USPQ2d at 1789. If the language is not considered as precise as the subject matter permits, the examiner should provide reasons to support the conclusion of indefiniteness and is encouraged to suggest alternatives that would not be subject to rejection. MPEP 2173.05(a), I and II.
Consistent with the well-established axiom in patent law that a patentee or applicant is free to be his or her own lexicographer, a patentee or applicant may use terms in a manner contrary to or inconsistent with one or more of their ordinary meanings if the written description clearly redefines the terms. See, e.g., Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). Accordingly, when there is more than one meaning for a term, it is incumbent upon applicant to make clear which meaning is being relied upon to claim the invention. Until the meaning of a term or phrase used in a claim is clear, a rejection under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph is appropriate. MPEP 2173.05(a), III.
In the instant case, the phrases “small molecular group water”, “micro cluster water” and “small cluster water” do not have a specifically defined meaning, either in the instant specification, or in scientific literature. Moreover, the “within 100 hertz” phrase does not specifically define if a particular treatment is performed on water to render water as “structured water”.
It is noted that structured water can have 5-7 water molecules, but it is not clear if this feature is separate and independent from the phrases noted above.
Applicant has not provided enough information about “structured water” so that the meets and bounds of the material can be reasonably determined by one of ordinary skill in the art. It isn’t clear if structured water has some inherent crystalline structure, treatment schedule or other properties and as a result the term is indefinite.
For examination purposes, “structured water” will be examined as “water”.
Claims 2-20 are rejected for depending from claim 1.
Claims 3, 4, 6, 8 and 10 are also indefinite for containing the term “structured water”.
Claim 3 recites the limitation "the multi-delyn with iron oral liquid" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation " the multi-delyn with iron oral liquid " in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claims 5, 8-11 and 20 are rejected for depending from claim 4.
Claims 15, 19 and 20 are rejected for the phrase “fog-absorbing rod”.
The courts have generally held that the meaning of every term used in a claim should be apparent from the prior art or from the specification and drawings at the time the application is filed. Claim language may not be "ambiguous, vague, incoherent, opaque, or otherwise unclear in describing and defining the claimed invention." In re Packard, 751 F.3d 1307, 1311, 110 USPQ2d 1785, 1787 (Fed. Cir. 2014). Courts have recognized that it is not only permissible, but often desirable, to use new terms that are frequently more precise in describing and defining the new invention. In re Fisher, 427 F.2d 833, 166 USPQ 18 (CCPA 1970). If the claims, read in light of the specification, reasonably apprise those skilled in the art both of the utilization and scope of the invention, and if the language is as precise as the subject matter permits, the statute (35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph) demands no more. Packard, 751 F.3d at 1313, 110 USPQ2d at 1789. If the language is not considered as precise as the subject matter permits, the examiner should provide reasons to support the conclusion of indefiniteness and is encouraged to suggest alternatives that would not be subject to rejection. MPEP 2173.05(a), I and II.
Consistent with the well-established axiom in patent law that a patentee or applicant is free to be his or her own lexicographer, a patentee or applicant may use terms in a manner contrary to or inconsistent with one or more of their ordinary meanings if the written description clearly redefines the terms. See, e.g., Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). Accordingly, when there is more than one meaning for a term, it is incumbent upon applicant to make clear which meaning is being relied upon to claim the invention. Until the meaning of a term or phrase used in a claim is clear, a rejection under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph is appropriate. MPEP 2173.05(a), III.
The aforementioned phrase is not one used in the art of electronic cigarettes and it is not defined in the instant disclosure of the invention. As such, the meets and bounds of the phrase cannot be determined by one of ordinary skill in the art.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
SARIPALLI et al. (US 2022/0324715) discloses a tobacco material composition (Abstract) involving structured water (Paragraph [0035]). The composition comprises propylene glycol (Paragraphs [0008], [0055]), vegetable glycerin (Paragraphs [0054], [0055]).
WHITE et al. (US 2017/0172200) discloses a flavor additive for a tobacco product (Abstract). The additive include bovine gelatine (Paragraph [0050]).
DOCHERTY et al. (US 2021/0213091) discloses an active agent for tobacco (Abstract) that include shark oils (Paragraph [0066]).
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/ALEX B EFTA/Primary Examiner, Art Unit 1745