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Claims 9-14 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim.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 03/05/2026.
Response to Arguments
Applicant's arguments filed 06/30/2026 have been fully considered. Applicant’s arguments regarding the rejection of amended claim 1 under 35 U.S.C. § 102(a)(1) have been considered. The anticipation rejection has been withdrawn because Yamada does not expressly disclose that, over a predetermined amount of use, a majority of the plurality of channels close to prevent air from passing through the channels. The amended claim is instead rejected under 35 U.S.C. § 103 based on Yamada for the reasons set forth below.
Applicant argues that Yamada does not disclose a porous element comprising a plurality of channels through which air can pass. This argument is not persuasive. Yamada places flavor source 128 in aerosol flow path 121 downstream of atomizing part 118 such that aerosol and air pass through flavor source 128. Yamada further teaches that flavor source 128 may comprise shredded tobacco or tobacco formed into particulate, sheet-like, or powder-like form (¶ [0107]). Such an air-permeable tobacco structure contains interstitial airflow channels through which the aerosol and air pass. The claim does not require the channels to have any particular shape, size, or formation.
Applicant further argues that Yamada does not deliberately arrange flavor source 128 such that a majority of the channels close over a predetermined amount of use. This argument is not persuasive because the rejection does not rely on Yamada as expressly disclosing that limitation. Rather, the rejection explains that porous materials repeatedly exposed to heated and/or moisture-containing aerosol predictably undergo accumulation of constituents and structural changes that progressively reduce the available airflow passages. It would have been obvious to arrange Yamada’s shredded or particulate tobacco flavor source as a porous structure exhibiting this known material behavior under Yamada’s disclosed operating conditions. The phrase “over a predetermined amount of use” describes the operating condition under which the porous element exhibits the claimed capability and does not require additional device structure.
Applicant contends that closing the channels would be inconsistent with Yamada’s purpose of imparting flavor during use. This argument is not persuasive. Claim 1 does not require the channels to close before or throughout the useful flavor-delivery period. The closure occurs over a predetermined amount of use and may therefore correspond to degradation of the porous element at the end of its useful life. Moreover, the claim requires closure of a majority of the channels, not closure of every channel or complete blockage of the air path. The remaining channels may continue to permit airflow while the increase in airflow resistance indicates that the porous element has changed.
Applicant also argues that Yamada uses cumulative energization time or cumulative power rather than a sensor to determine a change in the porous element. This argument is not persuasive because claim 1 is directed to a device and does not require a particular algorithm for calculating the condition or remaining capacity of the porous element. Yamada discloses sensor 112 configured as a pressure sensor that detects pressure fluctuations in aerosol flow path 121 (¶ [0103]). Because flavor source 128 is positioned in that flow path, Yamada’s pressure sensor is structurally capable of detecting a pressure change resulting from a change in the airflow resistance of flavor source 128. Yamada’s additional disclosure of estimating capacity using cumulative operating information does not negate the capability of its disclosed pressure sensor.
Claims 2–4, 6, 7, and 8 are not patentable merely by virtue of their dependency from claim 1. The additional limitations of those claims are addressed separately in their respective rejections.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1—4 and 7—8 are rejected under 35 U.S.C. § 103 as being unpatentable over Yamada et al. (US 2020/0338284 A1)
Regarding claim 1, Yamada teaches an aerosol-generating device (inhaler device 100B, ¶ [0105]) comprising:
an air path including an aerosol-generating region (aerosol flow path 121 including atomizing part 118, ¶ [0099]);
a porous element downstream of the aerosol-generating region located in the air path (flavor source 128 placed in aerosol flow path 121 closer to suction port 122 than atomizing part 118, wherein aerosol passes through flavor source 128, ¶ [0107]);
a sensor for determining at least one pressure or direction of airflow in the air path to indicate a change in a characteristic of the porous element (sensor 112 including a pressure sensor that detects fluctuation in pressure in aerosol flow path 121, ¶ [0103]); and
wherein the porous element comprises a plurality of channels through the porous element through which air can pass (interstitial airflow channels of flavor source 128, which may comprise shredded tobacco or tobacco formed into a particulate, sheet-like, or powder-like form through which aerosol and air pass, ¶ [0107]).
The recitation that the sensor determines pressure in the air path “to indicate a change in a characteristic of the porous element” describes the capability of the claimed sensor and does not require a different sensor structure. Yamada’s pressure sensor is located and configured to detect pressure fluctuations in the aerosol flow path containing downstream flavor source 128 and is therefore capable of detecting a pressure change resulting from a change in the airflow resistance of flavor source 128.
Yamada does not expressly teach wherein the porous element is arranged such that, over a predetermined amount of use, a majority of the plurality of channels close to prevent air passing through the channels.
However, Yamada passes heated aerosol and air through porous tobacco flavor source 128 during use (¶ [0107]). It is well understood that porous materials repeatedly subjected to heated and/or moisture-containing aerosol undergo accumulation of constituents and structural changes that progressively reduce the available airflow passages. As exposure continues, an increasing number of the airflow channels become obstructed relative to the number of unobstructed channels, predictably reaching a condition in which a majority of the channels are closed.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to arrange Yamada’s shredded or particulate tobacco flavor source as a porous structure having interstitial airflow channels that progressively close when repeatedly exposed to heated and/or moisture-containing aerosol during use. One would have been motivated to employ such a porous tobacco arrangement because it permits aerosol to pass through and acquire flavoring ingredients from flavor source 128 while providing the predictable material response of progressively increased airflow resistance as constituents accumulate within the porous structure. Accordingly, the resulting porous flavor source would have been capable, after continued use, of reaching a condition in which a majority of its airflow channels are closed and air is prevented from passing through those closed channels.
The recited “predetermined amount of use” specifies the operating condition under which the porous element exhibits the claimed capability and does not require additional device structure. The modification represents the application of a known behavior of porous materials under known operating conditions to Yamada’s known device to yield the predictable result of progressive channel closure. MPEP § 2143
Regarding claim 2, Yamada teaches wherein the sensor is arranged to determine the change in at least one of the following characteristics: pressure of the airflow in the air path ((The sensor 112 may include a pressure sensor that detects fluctuation in pressure in the air intake channel 120 and/or the aerosol flow path 121 or a flow sensor that detects a flow rate in the air intake channel 120 and/or the aerosol flow path 121 ¶[0103]); temperature of the airflow in the air path; humidity of the airflow in the air path; density of vapor in the air path; change in content of the airflow in the air path; or direction of the airflow of the air path.
Regarding limitation of claim 3,” a controller arranged to receive a signal relating to the determination of the sensor of the change in the characteristic of the airflow in the air path”,
Yamada teaches a controller configured to receive signals from a sensor that detects airflow parameters such as pressure or flow rate in the air path (¶¶[0114], [0132]). The controller uses the detected airflow parameter to determine whether a predefined condition is defined.
“wherein the controller is arranged to prevent activation of the aerosol generating device in response to a predetermined value of the determination of the sensor”
Yamada teaches that the controller determines whether a detected airflow parameter meets a predefined condition or threshold (¶¶ [0130], [0132]). When the condition is satisfied, the controller prohibits energization of the atomizing part, thereby stopping generation of aerosol ¶[0137]). The preventing energization of the atomizing part corresponds to preventing activation of aerosol generating device in response to a predetermined value of the sensor determination.
Regarding the additional limitation of claim 4:
“wherein the porous element is arranged to become less porous over time of use”
Yamada teaches:
a tobacco flavor source (porous element) disposed in the airflow path (¶¶ [0106]–[0107])
heated aerosol generation at the atomizing part (¶ [0099])
air and aerosol flowing through the tobacco flavor source during use (¶¶ [0099]–[0100])
Accordingly, Yamada teaches that the same material (tobacco porous element) is subjected to the same conditions (heated and/or moisture-containing airflow during use).
Applicant’s specification confirms that tobacco exposed to hot and/or wet airflow degrades over time, resulting in reduced porosity (Spec., p. 4–5).
Therefore: same material plus same operating conditions equals same result, namely the porous tobacco element becomes less porous over time of use.
Accordingly, the porous element of Yamada is inherently arranged to become less porous over time of use.
To the extent the claim recites functional language, such language does not impose a structural limitation beyond the porous tobacco element already taught by Yamada.
Regarding claim 7, Yamada teaches wherein the porous element comprises a flavorant ([0107]).
Regarding claim 8, Yamada teaches wherein the flavorant is at least one of menthol, fruit, tobacco, or blends thereof ([0107]).
Claim(s) 6 is rejected under 35 U.S.C. 103 as being unpatentable over Yamada et al. (US20200338284). as applied to claim 1 above, and further in view of Bodaghi (US 6,488,801).
Regarding claim 6, Yamada teaches: the porous element comprises a plurality of channels for airflow, as Yamada teaches a porous tobacco flavor source through which air and aerosol pass, and such porous material is reasonably understood to include multiple airflow paths/channels (¶¶ [0099]–[0100], [0106]–[0107]).
Yamada does not explicitly teach: that a majority of the plurality of channels of the porous element are arranged to close when subjected to airflow at about 40°C to about 120°C for a predetermined period of time.
Bodaghi teaches: a porous fibrous material having a plurality of pores/channels for fluid flow, that pore size corresponds to permeability (col. 14, lines 1–5)
hat the material shrinks under a temperature differential, resulting in:
reduction in pore size
restriction or elimination of fluid flow through the pores (col. 13, lines 40–55)
that such pore reduction occurs at elevated temperatures, including temperatures in the range of approximately 25–110°C or higher (col. 19, lines 40–65)
Bodaghi is reasonably pertinent to the problem faced by the inventor because it relates to behavior of porous materials under thermal conditions affecting fluid flow. The present claims likewise concern airflow through a porous element subjected to temperature. Accordingly, one of ordinary skill in the art would have reasonably consulted Bodaghi for its teachings regarding temperature-dependent changes in porous structures. See MPEP §2141.01(a).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to utilize a porous material as taught by Bodaghi for the porous element of Yamada, since Bodaghi teaches that such porous materials exhibit temperature-dependent pore size reduction when subjected to elevated temperatures, including temperatures overlapping the claimed range of about 40°C to about 120°C, resulting in restricted or eliminated flow through the pores.
Such modification represents the predictable use of prior art elements according to their established functions, as the porous element of Yamada is exposed to heated airflow, and Bodaghi teaches the known effect of temperature on porous materials, namely shrinkage resulting in reduced pore size and restricted flow at elevated temperatures.
Furthermore, the temperature-dependent pore size reduction taught by Bodaghi occurs as a function of exposure to temperature, such that the reduction in pore size necessarily takes place over a period of time under the applied thermal conditions, thereby meeting the claimed requirement of a predetermined period of time.
Conclusion
THIS ACTION IS MADE FINAL. 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 JENNIFER KESSIE whose telephone number is (571)272-7739. The examiner can normally be reached Monday - Thursday 7:00am - 5:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JENNIFER A KESSIE/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
Prosecution Insights