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 .
Election/Restrictions
Claims 14-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 05/11/2026.
Applicant’s election without traverse of Claim 1-13 in the reply filed on 05/11/2026 is acknowledged.
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1-13 are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1-13 of prior U.S. Patent No. 11,844,374 B2. This is a statutory double patenting rejection. Although the claims at issue are not identical in wording, they are coextensive in scope and therefore claim the same invention.
The conflicting claims are not patentably distinct because they are directed to the same consumable component for an aerosol provision system. Claim 1 of the instant application corresponds to Claim 1 of U.S. Patent No. 11,844,374 B2 because both claims recite a consumable component comprising an outer housing having an outer wall extending between first and second end walls to define an interior chamber, openings in the end walls to allow airflow through the interior chamber, a plurality of elements of solid aerosol-forming material retained within the interior chamber by the housing, and a heater located within the interior chamber configured to heat the plurality of elements of solid aerosol-forming material during use to generate vapor for user inhalation.
Claims 2–13 of the instant application correspond to claims 2–13 of U.S. Patent No. 11,844,374 B2, respectively.
Claim 2 corresponds to patent claim 2 because both recite that the plurality of elements of solid aerosol-forming material comprise elements of a solid substrate material holding a liquid aerosol precursor material.
Claim 3 corresponds to patent claim 3 because both recite tobacco.
Claim 4 corresponds to patent claim 4 because both recite calcium carbonate. Claims 5 and 6 correspond to patent claims 5 and 6 because both recite average characteristic dimensions for the plurality of elements of solid aerosol-forming material.
Claim 7 corresponds to patent claim 7 because both recite an inductive susceptor. Claim 8 corresponds to patent claim 8 because both recite a resistance heater and electrical contacts on the outer housing electrically connected to the resistance heater.
Claim 9 corresponds to patent claim 9 because both recite a heater having a planar form, tubular form, rod-shaped form, and/or a plurality of electrically conductive elements distributed through the plurality of elements of solid aerosol-forming material.
Claim 10 corresponds to patent claim 10 because both recite the heater mounted to at least one of the first and second end walls.
Claim 11 corresponds to patent claim 11 because both recite a cap fitted over an end of the outer wall or a plug fitted into an end of the outer wall.
Claim 12 corresponds to patent claim 12 because both recite outer housing material options.
Claim 13 corresponds to patent claim 13 because both recite elements arranged into zones and a heater configured to selectively independently heat elements in different zones.
Allowable Subject Matter
Claims 1–13 are allowable but for the nonstatutory double patenting rejection set forth above.
The closest available prior art of record is Turner et al. (U.S. 2018/0035719). Turner teaches a cartridge for use with an apparatus for generating an inhalable medium, wherein the cartridge includes a container for holding liquid, a receptacle or container for solid material, through holes through which vapor or aerosol can pass, and a heater associated with the receptacle for heating the solid material.
However, Turner does not teach the claimed consumable component comprising, in combination, an outer housing having an outer wall extending between first and second end walls to define an interior chamber, wherein the first and second end walls have openings to allow air to flow into the interior chamber through the first end wall and out of the interior chamber through the second end wall during use, a plurality of elements of solid aerosol-forming material retained within the interior chamber by the housing, and a heater located within the interior chamber configured to heat the plurality of elements of solid aerosol-forming material during use to generate vapor for user inhalation.
Turner is directed to a cartridge in which liquid is volatilized to form vapor or aerosol, and the vapor or aerosol passes through or over solid material to pick up flavor from the solid material. Thus, Turner’s solid material is used in combination with a liquid source and liquid-heating arrangement, rather than as a plurality of solid aerosol-forming material elements retained in an interior chamber and heated by a heater located within that chamber to generate vapor. The prior art does not provide a reasoned basis to modify Turner to remove or substantially alter its liquid-vaporization arrangement and reconfigure Turner into the claimed consumable component having a chamber retaining a plurality of elements of solid aerosol-forming material between first and second end walls with airflow openings and a heater located within the chamber for heating those elements. Such a modification would require reconstruction of Turner using applicant’s disclosure as a guide.
Conclusion
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/JENNIFER A KESSIE/Examiner, Art Unit 1747
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
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