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
Applicant's election with traverse of group I (claims 19-36) in the reply filed on 6/01/2026 is acknowledged. The traversal is on the ground(s) that the common technical feature is not disclosed by Novack III et al. as stated in the restriction requirement. This is not found persuasive because the feature which the applicant is relying on is not claimed. The applicant states that the heater of Novak is arranged in the cartridge and not in the housing. Although the heater is within the cartridge, as claimed the sealed housing can also contain the aerosol-generating article. There is no claimed relationship between the heating chamber and the sealed housing.
Furthermore, the common feature is the venting means, and not where the venting means is located.
Finally, the common technical feature is disclosed by other prior art (see the rejections below.)
The requirement is still deemed proper and is therefore made FINAL.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
In the instant claims, “venting means” is interpreted under 35 U.S.C. 112(f) and therefore shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
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.
Claim(s) 19, 29, 30, and 36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Adams et al. (US 5878752 A) in view of Element Vape (“IP Ratings Explained: Waterproof, Dustproof & Shockproof Vape Devices”, 2020) and Kleinke et al. (US 20180292020A1).
Regarding claim 19, Adams discloses an aerosol generating device with a heating chamber that received an aerosol-generating article and a housing compartment that contains a power source, control circuitry, etc. As illustrated in figure 1, the chamber is isolated, or sealed, from the housing by a cigarette heater fixture (39) that is within the sealed housing. The heating fixture and sleeve serve as an aerosol barrier and condensate accumulator to protect the other components of the aerosol generator (see abstract). The hosing of Adams et al. is interpreted to meet the limitation “sealed hosing compartment” because the outer housing is continuous and the heater fixture is illustrated as being continuous and expressly disclosed as preventing aerosol from reaching internal parts.
Adams et al. do not disclose a venting means. First, it is known in the art to make the housing that contains the electronics and power supply resistant to environmental hazards such as water and dust. Element Vape discloses that some vapes have “Ingress protection” such as IP67 ratings by IEC. These vapes are, “completely protected to withstand water submersion and intrusion for 30 minutes at a depth of 1 meter.” It would have been obvious to one of ordinary skill in the art at the time of invention would have been motivated to build electronics of portable vape products to be sealed to prevent damage by accidental exposure to water as discloed by Element Vape.
Sealing electronics and batteries can cause problems. Kleinke et al. disclose that in sealed electronics housings overpressures and negative pressures can occur due to heating/cooling during operation and external temperature fluctuations [0018]. Kleinke et al. further state:
housings have to be protected against undesirably high differential pressures. The pressure-compensation device is provided for this purpose. By means of the pressure-compensation element, pressure peaks can be reduced, and the potential pressure loads on the housing are thereby reduced in a defined manner. [0019]
Kleinke et al. then disclose a PTFE membrane vent that is gas permeable and watertight during normal conditions. It would have been obvious to one of ordinary skill in the art at the time of invention to use the vent of Kleinke et al. to provide pressure compensation to the housing of Adams et al. so that the housing can survive heating and cooling and be waterproof as disclosed by Element Vape.
Klienke et al. is not in the same field as the inventor’s endeavor, however, it is reasonably pertinent to the particular problem with which the inventor was concerned (i.e. sealing electronics), in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). One of ordinary skill would have looked to solutions in the electronics field to seal and waterproof the electronics of smoking articles.
Regarding claim 29, Klienke et al. disclose a vent system that is installed in an opening in a housing and that has an opening in the same direction as the opening in the housing. In addition, there is a channel (2) that extends in a direction opposite the hole in the housing.
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Regarding claim 30, the device of Klienke et al. includes an air channel defined by the wall of the housing and the device (i.e. between element 18 and the housing). Although this is not a recess, the device of Klienke et al. could be made integral with the housing wall would would result in the channel being formed in the wall. It has been held, “that the use of a one piece construction instead of the structure disclosed in [the prior art] would be merely a matter of obvious engineering choice." (see MPEP 2144.04 (V)(B)).
Regarding claim 36, Adams et al. disclose that the cleaning cycle of the article my be initiated by a “push-button” switch (col. 21, line 22-25). It would have been obvious to one of ordinary skill in the art that pushing a button would cause changes in volume during pushing and releasing the button.
Claim(s) 20-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Adams et al. (US 5878752 A), Element Vape (“IP Ratings Explained: Waterproof, Dustproof & Shockproof Vape Devices”, 2020) and Kleinke et al. (US 20180292020A1), as applied to claim 19 above, and in further view of Repolleet et al. (US 5,828,012).
Regarding claims 20, 21, 24-28, Kleinke et al. disclose the general features of ptfe pressure relief valves but do not disclose that the membrane has specific water entry and airflow capacities and specific structure. However, Repolleet et al. disclose a similar protective vent that is composed of expanded PTFE and a backing support of non-woven polyester (col. 5, 1-48) and disclose that the membrane should be 12-250 micrometers (i.e. 0.012 to 0.25 mm) thick, have an air permeability of 0.05 to 30 Gurley-seconds (i.e. 768,000 ml/cm2*min to 1,280 ml/cm2*min)(col. 4, 53-65). A water entry pressure of 1.4 to 552 kPa is disclosed with a preferable range of 6.9 to 69 kPa). Although the vent of Repolleet et al. is not in a smoking article, it would have been obvious to one of ordinary skill in the art at the time of invention to use the air permeable vent of Repolleet et al. in the invention of Adams et al. to allow pressure equalization as taught by Element Vape and Klienke et al.
In addition, Repolleet et al. disclose a commercially available protective vent material sold under the name, “GORE ALL-WEATHRE VENT” that uses a polyester backer, porous expanded PTFE membrane with air permeability of 0.75 Gurley seconds, and a 4.05 mm opening (col 8, 34-59).
Regarding claims 22 and 23, Repolleet et al. disclose airflow capacity in Gruley seconds which is measured at approximately 1.2 kPa. And not 7 kPa. However, the range disclosed by Repolleet et al. would obviously encompass the airflow capacities measured at a higher air pressure.
Claim(s) 31-35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Adams et al. (US 5878752 A), Element Vape (“IP Ratings Explained: Waterproof, Dustproof & Shockproof Vape Devices”, 2020) and Kleinke et al. (US 20180292020A1), as applied to claims 19 and 29 above, and in further view of Hupkes et al. (US 20220285785A1).
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Regarding claims 31, 33, and 34, Adams et al, Element Vape, Kleinke et al. as applied to claim 29 above do not disclose that the vent channel is connect to a recessed area. However, Hupkes et al. disclose locating a vent in a recess (see figure 8a, element 17 below) along with other features of the device (a fastener (23) and a usb connector (24)) and concealing them with a cover panel (81). It would have been obvious to one of ordinary skill in the art at the time of invention to locate the vent within a recess as disclosed by Hupkes et al. in order to locate the vent near the battery to vent possible battery malfunction and provide concealment of the vent and fasteners as illustrated (see disclosure of the need to vent batteries [0005]). The covering also makes it harder for an uneducated consumer to access the interior of the device and covering the vent hole improves safety by protecting and hiding access to the battery [0101].
Regarding claim 32, although Hupkes et al. disclose a fastener adjacent to the vent in a recess, Hopkes et al. do not disclose that a screw head is in the recess area. However, it is notoriously well known in the art, as well as in the general public, that screws are a well-known type of fastener. It would have been obvious to one of ordinary skill, as well as those of general skill, to use a screw as the fastener disclosed by Hupkes et al. Doing so would result in a screw head being located in the recessed area. In addition, the fastener appears to be a Phillips screw in figure 2B.
Regarding claim 35, the vent disclosed by Kleinke et al. does not indicate the distance between the cover and the vent. However, it would be relative size of the space between the cover and the vent would not perform differently than the prior art device and are therefore not patentably distinct from the prior art device (see MPEP 2144.04(IV)(A)).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J FELTON whose telephone number is (571)272-4805. The examiner can normally be reached Monday, Thursday-Friday 7:00-4:30, Wednesday 7:00-1:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H Wilson can be reached at 571-270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michael J Felton/Primary Examiner, Art Unit 1747
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