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 amendment presents claims 1 as amended, claims 3-7 and 15-19 as cancelled and claims 21-30 as added. Claims 1, 2, 8-14, and 20-30 remain pending examination.
The amendment to claim 1 obviates the previously indicated objection to the same.
The cancellation of claim 3 obviates the previously indicated rejection of the same under 35 USC 112 (b).
The amendment (i.e., the cancelling of claims 4-7 and 15-19) is sufficient in addressing the priority issues, as well as, the associated drawing and specification objections and prior art rejections.
The Double Patenting rejections are similarly withdrawn in view of the amendment made to independent claim 1.
Further grounds of rejection, necessitated by the amendment, are presented herein.
Response to Arguments
Applicant's arguments filed 02/25/2026 have been fully considered but they are not persuasive.
With respect to the prior art rejections under 35 USC 103, Applicant traverses in that:
By this response, claim 1 has been amended to describe that the cylindrical cartridge includes a wall having an open end. The wall is described as forming a cartridge housing. Claim 1 has been further amended to describe that the susceptor covers the open end of the cartridge housing. Support for the amendment may be found in, for example, paragraph [0092]. No such cartridge housing or susceptor is shown in Gill. Gill clearly shows that capillary element 38, described by the Examiner as being analogous to the claimed susceptor, is arranged entirely within reservoir 32. Further, capillary element 38 is not arranged at an open end of reservoir 32 nor at an open end of housing 41. Metz does not include any teachings that make up for this shortcoming. For at least these reasons, The Applicant respectfully submits that claim 1 is patentably defined over the cited patent documents.
In response, the Examiner respectfully disagrees. Gill teaches a cylindrical cartridge (30; para. 0070) configured to hold an aerosol-forming liquid (34), the cylindrical cartridge including, a wall (circumferential wall defining an inner reservoir for aerosol forming liquid 34) having an open end (para. 0072; “In the cartridge 30 illustrated in FIGS. 1 and 2a, the capillary element 38 comprises a capillary tube 50 having a first end 52 in contact with the aerosol-forming liquid 34 in the reservoir 32 and an opposite second end 54 which is arranged to transfer the conveyed liquid 34 onto the induction heatable element 36.”). In this case, the second end 54 is an open end that allows the liquid 34 to be communicated to heating element 36. As such, end 54 is “open” to allow for such communication.]. Gill also teaches the wall forming a cartridge housing ( cartridge 30 defines a housing for liquid 34), and the susceptor (Figure 2g-2h, susceptor is understood to include porous body 62 of ceramic material and induction heatable element 36; para. 0070 and 0077) covering the open end of the cartridge housing (Fig. 1. See also Figures 2g-2h). The Examiner notes that the claim does not require a specific placement of the susceptor relative to the open end. In that regard, the claims are not limited to the susceptor being “arranged at an open end,” nor does the claim language preclude the susceptor, or a portion thereof, being arranged within the reservoir.
For the reason detailed above, the Examiner maintains that the prior art of record renders obvious amended independent claim 1 and claims 2, 8-14, and 20-30 depending therefrom.
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.
Claim 2 is 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 2 recites “the susceptor forms an end of the cylindrical cartridge.” However, claim 1 recites that the cylindrical cartridge includes a wall having an open end and the susceptor covers the open end. It is unclear if the “open end” and the “end” refer to the same end of the cartridge or to different ends. If it is the same open end, then it remains unclear in what way, if any, claim 2 further defines or limits the subject matter of claim 1, that already requires the susceptor to cover the open end and would be understood to form an end of the cartridge in that it is closing the open end.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 22 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 22 recites “wherein the susceptor covers the open end,” while claim 1 recites “a susceptor covering the open end.” As such, claim 22 fails to further limit the subject matter of claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 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.
Claim(s) 1-2, 8, 10-12, 20-22, and 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gill et al. (US20220061397; relying on earlier filing date) in view of Metz (US 2017/0347714).
Regarding claim 1¸Gill teaches an aerosol-generating device (Title; Figure 1; 10) comprising:
an induction coil (26) configured to generate an alternating electromagnetic field (para. 0071); and
a cylindrical cartridge (30; para. 0070) configured to hold an aerosol-forming liquid (34), the cylindrical cartridge including,
a wall (circumferential wall defining an inner reservoir for aerosol forming liquid 34) having an open end (para. 0072; “In the cartridge 30 illustrated in FIGS. 1 and 2a, the capillary element 38 comprises a capillary tube 50 having a first end 52 in contact with the aerosol-forming liquid 34 in the reservoir 32 and an opposite second end 54 which is arranged to transfer the conveyed liquid 34 onto the induction heatable element 36.”) [In this case second end 54 is an open end that allows the liquid 34 to be communicated to heating element 36. As such, end 54 is “open” to allow for such communication.], the wall forming a cartridge housing ( cartridge 30 defines a housing for liquid 34), and
a susceptor (Figure 2g-2h, susceptor is understood to include porous body 62 of ceramic material and induction heatable element 36; para. 0070 and 0077) covering the open end of the cartridge housing (Fig. 1. See also Figures 2g-2h), the susceptor configured to hold a first portion of the aerosol-forming liquid and heat the first portion of the aerosol-forming liquid under influence of the alternating electromagnetic field generated by the induction coil (para. 0077 and 0071), the susceptor including, an open-porous ceramic material (para. 0077; “porous body 62 of ceramic material or another suitable solid material. In the cartridge 30 of FIG. 2g, an upper surface of the induction heatable element 36 is in direct contact with the porous body 62 and, hence, the conveyed aerosol-forming liquid 34. In the cartridge of FIG. 2h, the induction heatable element 36 is encapsulated by the porous body 62 so that both the upper and lower surfaces of the induction heatable element 36 are in contact with the porous body 60 and, hence, the conveyed aerosol-forming liquid 34. In order to facilitate the flow of liquid and vapour through porous body 62, the induction heatable element 36 may include one or more apertures or perforations as seen in FIG. 2h (e.g. it may be in the form of a perforated disc).” [Here, the porous body 62 of ceramic material is understood to describe an open porous material as the liquid 34 is conveyed into and through the porous material in order to be heated by 36. As such, at least a portion of liquid 34 would be retained within the porous body of the susceptor.])
While Gill teaches substantially the claimed invention including the susceptor including an open porous ceramic material, Gill does not teach ceramic material defining a cylindrical shape. However, Gill does teach the cartridge (30) being cylindrical and that the susceptor is positioned within the cartridge (Figs. 2g-2h). One skilled in the art would logically conclude that the susceptor could also be made in a cylindrical shape to match the shape of the cartridge.
Metz relates to an aerosol-generating device (para. 0001; Figures 1-2) and teaches using a cylindrical heater (42; which is defined by resistance heater 44a and porous ceramic 44b. Figure 2A shows 42 being cylindrical in shape.) (see para. 0015 and 0032; teaching the benefit of using porous ceramic material).
Therefore, it would have been obvious to someone with ordinary skill in the art at the time the invention was filed to modify Gill with Metz, by replacing the shape of the susceptor of Gill, being inherently of some shape, with the cylindrical shape taught by Metz, for in doing so would be a minor change in shape of the susceptor which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular shape was significant. See MPEP 2144.04-IV-B. Furthermore, as detailed above, having the susceptor being cylindrical would allow for the susceptor to match the shape of the cartridge.
Regarding claim 2, the primary combination teaches the claimed invention, as detailed in claim 1, and further teaches wherein susceptor forms an end of the cylindrical cartridge (Gill, as detailed in claim 1 above, illustrates the susceptor forming an end of the cartridge).
Regarding claim 8, the primary combination teaches the claimed invention, as detailed in claim 1, and further teaches wherein the susceptor is in an interior region of the induction coil (Gill; Figure 1).
Regarding claim 10, the primary combination teaches the claimed invention, as detailed in claim 1, and further teaches wherein a distance between the susceptor and the induction coil is constant (Gill; Figure 1 shows constant relative spacing).
Regarding claim 11, the primary combination teaches the claimed invention, as detailed in claim 1, and further teaches wherein the open-porous ceramic material has a porosity ranging from 20% to 60% (Metz; para. 0033, “the ceramic layer has a porosity in the range of 10-80%, preferably 15-50%, more preferably 20-30% and most preferably the porosity is about 25%. It was shown that especially the porosity in a range of 20-30% provides an optimum in the performance of specifically the ceramic layer and the heater as a whole.”) (see also para. 00072).
Therefore, it would have been obvious to someone with ordinary skill in the art at the time the invention was filed to modify Gill with Metz, by replacing the porosity of the porous ceramic material of Gill, being inherently of some value, with the porosity taught by Metz, as the prior art teaches that a porosity in the range of 20-30% provides an optimum performance. Furthermore, the porosity of the ceramic material is interpreted to be a result effective variable that would be optimized in order to achieve a recognized result. In this case the recognized result would be the performance of the susceptor, including the rate at which the liquid is able to be vaporized during use of the device. A person of ordinary skill in the art would recognize that the porosity directly corresponds to how much of the aerosol forming liquid can be directed into the ceramic material to be heated and vaporized by the heating element. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." See MPEP 2144.05-ll-A and MPEP 2144.05-ll-B.
Regarding claim 12, the primary combination teaches the claimed invention, as detailed in claim 1, and further teaches wherein the open-porous ceramic material is an electrically non-conductive material (Gill; para. 0070; 62 is part of capillary element 38 which is “an electrically insulating and non-magnetic material” that does not directly heat up in the presence of an electromagnetic field.) (See also Metz in para. 0015 and 0032 for benefits of using a non-conductive material ceramic).
Regarding claim 20, the primary combination teaches the claimed invention, as detailed in claim 1, and further teaches wherein the cylindrical cartridge is configured to be removed from the aerosol-generating device (Gill; para. 0047).
Regarding claim 21, the primary combination teaches the claimed invention, as detailed in claim 1, and further teaches wherein the open end defines a bottom of the cylindrical cartridge (As detailed in claim 1, above).
Regarding claim 22, the primary combination teaches the claimed invention, as detailed in claim 21, and further teaches wherein the susceptor covers the open end (see claim 1, above).
Regarding claim 30, the primary combination teaches the claimed invention, as detailed in claim 1, and further teaches wherein the cylindrical cartridge (Gill, 30) is substantially leak proof (30 includes housing 41 that retains liquid 34. The housing has surrounding walls to define the internal reservoir and as such has necessary structure to substantially prevent leaking from occurring. See MPEP 2112 and 2114).
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gill et al. (US20220061397; relying on earlier filing date) in view of Metz (US 2017/0347714) and in further view of Cadieux (US20150245669).
Regarding claim 9, the primary combination teaches the claimed invention, as detailed in claim 1, except for the induction coil being a planar induction coil.
Cadieux relates to an aerosol generating device (title) and teaches using a planar inductive coil (para. 0025 and 0162).
Therefore, it would have been obvious to someone with ordinary skill in the art at the time the invention was filed to modify Gill, as modified by Metz, with Cadieux, by replacing the shape of the induction coil of Gill, being inherently of some shape, with the planar shape taught by Cadieux, for in doing so would be a minor change in shape of the coil which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular shape was significant. See MPEP 2144.04-IV-B.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gill et al. (US20220061397; relying on earlier filing date) in view of Metz (US 2017/0347714) and in further view of Swanson (US20110297668).
Regarding claim 13, the primary combination teaches the claimed invention, as detailed in claim 1, except for wherein the open-porous ceramic material includes a manganese-magnesium ferrite, a nickel-zinc ferrite, a cobalt-zinc barium ferrite, or any combination thereof.
Swanson relates to an inductive heater for vaporizing a liquid (para. 0006) and teaches using a ferrite ceramic material that exhibits low hysteretic losses (para. 0022) [corresponding to induction heatable element 36 of Gill that heats up in the presence of an electromagnetic field as a result of hysteresis losses]. Swanson teaches the ferrite material including ferrous oxide having iron, nickel, manganese, or zinc and, in particular, the ferrite including nickel-zinc (para. 0022).
Therefore, it would have been obvious to someone with ordinary skill in the art at the time the invention was filed to modify Gill, as modified by Metz, with Swanson, by replacing the ceramic material of Gill, with the ferrite ceramic taught by Swanson, for in doing so would result in the selection of a known material based on its suitability for its intended use (induction heating). See MPEP 2144.07.
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gill et al. (US20220061397; relying on earlier filing date) in view of Metz (US 2017/0347714) and in further view of Swanson (US20110297668), as evidenced by Bowman et al. (US 20120160828).
Regarding claim 14, the primary combination teaches the claimed invention, as detailed in claim 1, except for wherein the open-porous ceramic material has a Curie temperature ranging from 150° C. to 400° C.
Swanson relates to an inductive heater for vaporizing a liquid (para. 0006) and teaches using a ferrite ceramic material that exhibits low hysteretic losses (para. 0022) [corresponding to induction heatable element 36 of Gill that heats up in the presence of an electromagnetic field as a result of hysteresis losses]. Swanson teaches the ferrite material including ferrous oxide having iron, nickel, manganese, or zinc and, in particular, the ferrite including nickel-zinc (para. 0022).
Therefore, it would have been obvious to someone with ordinary skill in the art at the time the invention was filed to modify Gill, as modified by Metz, with Swanson, by replacing the ceramic material of Gill, with the ferrite ceramic taught by Swanson, for in doing so would result in the selection of a known material based on its suitability for its intended use (induction heating). See MPEP 2144.07.
With respect to the subject matter of claim 14, it is understood that the Curie temperature is an intrinsic material property. Swanson, as detailed above, teaches a nickel-zinc ferrite. Bowman serves as an evidentiary reference and states that “Nickel zinc ferrites (Ni.sub.1-xZn.sub.xFe.sub.2O.sub.4) have been reported to have Curie temperatures between about 350.degree. C. and 100.degree. C. in the range x=0.4 to 0.8” (para. 0057). See also MPEP 2112.01-II.
Claim(s) 23-29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gill et al. (US20220061397; relying on earlier filing date) in view of Metz (US 2017/0347714) and in further view of Rojo-Calderon (US20180279681, relying on earlier effective filing date).
Regarding claims 23-25, the primary combination teaches the claimed invention, as detailed in claim 1, except for wherein the susceptor includes a susceptor body having an axial length between about 3 millimeters (mm) and about 6 mm (claim 23), wherein the susceptor body includes an axial length between about 4 mm and about 5 mm (claim 24), and wherein the susceptor body includes a cylindrical outer contour of above 25 mm2 (claim 25).
Rojo-Calderon relates to an aerosol generating device in which an inductor heats a susceptor (Abstract). Rojo-Calderon teaches the susceptor including a susceptor body having an axial length between about 3 millimeters (mm) and about 6 mm (para. 0045, length between 4 mm and 20 mm), wherein the susceptor body includes an axial length between about 4 mm and about 5 mm (para. 0045), and wherein the susceptor body includes a cylindrical outer contour of above 25 mm2 (Para. 0045 describes the susceptor having a length of 4-20 mm and a diameter of 4-7 mm. This would yield an outer cylindrical area above 25 mm2. For instance, taking a length of 4 mm and a radius of 2 mm, would yield a lateral area of 50.2 mm2.).
Therefore, it would have been obvious to someone with ordinary skill in the art at the time the invention was filed to modify Gill, as modified by Metz, with Rojo-Calderon, by replacing the size and shape of the susceptor of Gill, being inherently of some size and shape, with that taught by Rojo-Calderon, for in doing so would be a minor change in shape of the coil which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular shape was significant. See MPEP 2144.04-IV-B. Additionally, altering the size of the susceptor would not yield a patentable distinction as such change in dimensions would not produce a susceptor that would perform differently than the prior art susceptors (i.e., the susceptor would still function to generate heat upon the application of an electromagnetic field). See MPEP 2144.04-IV-A.
Regarding claim 26, the primary combination teaches the claimed invention, as detailed in claim 23, including wherein the susceptor body includes an inner end surface and an outer end surface, the inner end surface being in direct contact with the aerosol-forming liquid (Gill, as detailed in claim 1. See Figs 1 and 2a-2h).
Regarding claim 27, the primary combination teaches the claimed invention, as detailed in claim 26, including wherein the outer end surface is exposed at the open end of the cylindrical cartridge (Gill, the outer end of the susceptor, which is the end not in direct contact with liquid 34, is left exposed at the open end in that it is exposed to the inner wall of the housing)
Regarding claim 28, the primary combination teaches the claimed invention, as detailed in claim 26, including wherein the outer end surface is fully exposed at the open end of the cartridge housing (Gill, as detailed above).
Regarding claim 29, the primary combination teaches the claimed invention, as detailed in claim 26, including wherein the outer end surface defines a vaporized aerosol-generating liquid outlet (Gill both outer and inner end surfaces of the susceptor define a vaporized aerosol generating liquid outlet in that both surfaces cooperate to vaporize the liquid 34, which then exits the cartridge 30 and air outlet 42).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUSTIN C DODSON whose telephone number is (571)270-0529. The examiner can normally be reached Mon.-Fri. 1:00-9:00 PM (ET).
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/JUSTIN C DODSON/ Primary Examiner, Art Unit 3761