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 4 and 12-14 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.
The term “smooth” in claim 4 is a relative term which renders the claim indefinite. The term “smooth” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 12 recites the limitation "the chamber lateral wall" (emphasis added) in line 3. There is insufficient antecedent basis for this limitation in the claim.
A chamber “side wall” was previously referenced.
Claims 13 and 14 are rejected for depending form claim 12.
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.
Claim(s) 1, 8-10, 12, 13 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over AN et al. (US 2024/0206544), having an earliest effective filing date of 1/29/2021 in view of ZUBER et al. (US 2018/0027884).
With respect to claims 1 and 15¸ AN et al. discloses an aerosol generating device (Abstract) configured to operate with an aerosol generating substrate. The device comprising a device body, 100, extending along a device length (Figures 1-5; Paragraphs [0065]-[0066]) and defining a sidewall (e.g., inner wall of device body lining heating chamber, 310 (Figure 5, annotated below), also extending along the device length. A cup-shaped heating chamber, 310, (Paragraphs [0068]-[0069]) defining an open end and a closed end opposite the open end (Paragraph [0068]), and the heating chamber being configured to receive a susceptor (e.g., heater part) of the aerosol generating substrate through the open end (Paragraph [0038]). An airflow path, 500, extending between a flow inlet (e.g., open end of heating chamber) and a flow outlet (e.g., through aerosol generating article) (Paragraphs [0066], [0076]-[0078], [0041]) through the open end of the heating chamber, the flow inlet being arranged on the side wall (see flow path 500, Paragraphs [0066] and [0076]-[0078]; Figure 5); the airflow path has an upstream portion (at the opening of the chamber) from the flow inlet until an abutting end of the aerosol generating article (e.g., through 320; Paragraph [0077]; Figure 5) and the downstream portion configured to extend from said abutting end until the flow outlet through the aerosol generating substrate when the substrate is inserted into the heating chamber (Paragraphs [0066], [0076]-[0078], [0041]; Figures 1-5). AN et al. further discloses that the device comprises is cylindrical shape chamber (Paragraph [0075]) and therefore implicitly has an axis that extends in a direction along the wall (Figure 5).
AN et al. further discloses that airflow is prevented from taking an unexpected path from the defined flow path, 500 (Paragraphs [0008], [0078])
AN et al. does not explicitly disclose a device axis and that the opposite end of the heating chamber is sealed.
ZUBER et al. discloses an aerosol generating system (Abstract). The heating chamber, 108, (Paragraphs [0109], [0110]) that is a blind cavity (Paragraphs [0015], [0120], [0110], [0120]) and forms a sealed chamber when the opening is sealed (Paragraphs [0015]) (e.g., the walls of the chamber are air impermeable). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide air impermeable walls to form a sealed chamber in AN et al., as taught by ZUBER et al. so that the only air the enters the aerosol generating substrate is that which only flows through the airflow path. Thus, there are no unexpected airflow paths.
With respect to claim 8, AN et al. discloses that the device body defines and insertion opening into which one end of the aerosol generating substrate is received (Paragraph [0101]; Figures 1, 2 and 5). The other end (e.g., a filter rod) of the aerosol generating substrate protruded from the device body (Figure 2; Paragraph [0030]) is capable of being used as a mouthpiece (Paragraphs [0055]-[0057]) by simply having the user place their mouth on the filter rod and inhaling.
With respect to claim 9, the courts have generally held that "[i]inclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935). MPEP 2115. The aerosol generating substrate is a material worked upon, and does not impart patentability to the claims. The device is capable of having the inlet facing ventilation holes in an aerosol generating substrate by providing said substrate in the heating chamber.
With respect to claims 10 and 12, AN et al. discloses that a part of the upstream portion of the flow path, 500, extends through the heating chamber outside of the aerosol generating substrate and the upstream portion of the airflow path extends through the open end of the heating chamber, and between the side wall and aerosol generating substrate (Paragraphs [0066], [0076]-[0078], [0041]; Figure 5).
With respect to claim 13¸as seen in figure 5 of AN et al. the sealed end of the heating chamber forms a transition portion between the upstream and downstream portions of the airflow path. Specifically, the airflow path reverses directions at the sealed end.
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Claim(s) 2-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over AN et al. (US 2024/0206544), in view of ZUBER et al. (US 2018/0027884) as applied to claims 1, 8-10, 12, 13 and 15 above, and further in view of LAVANCHY et al. (US 2022/0039478).
With respect to claim 2¸modified AN et al. does not disclose the claimed mouthpiece. LAVANCHY et al. discloses an aerosol generating device (Abstract) wherein the mouthpiece comprises a mouthpiece portion, 12, and a body portion, 34, successively extending along the body (Figures 2 and 3; Paragraphs [0107] and [0108]). The mouthpiece comprise a through-hole, 30, for receiving a part of the aerosol generating article (Paragraph [0105]), which enables optimized smoking experiences (Paragraphs [0007]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide the mouthpiece of LAVANCHY et al. on the device of AN et al. in order to optimize the smoking experience.
With respect to claim 3, ZUBER et al. shows that the inlets are in a transition zone between the mouthpiece and the housing (Figure 4; Paragraph [0119]).
With respect to claim 4, the courts have generally held that "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, In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965). MPEP 2144.04, V,B. In the instant case, one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to form the mouthpiece and body integrally in AN et al. so as to form a single-use vaporizer, rather than a re-fillable one.
ZUBER et al. shows that the inlets are in a transition zone between the mouthpiece and the housing (Figure 4; Paragraph [0119]).
With respect to claim 5, AN et al. discloses that the opening is perpendicular to the axis (Paragraph [0072]; Figure 5).
With respect to claim 6, ZUBER et al. shows that the inlets, 318, are defined in a recess in the mouthpiece portion (Figure 3).
With respect to claim 7, given that the airflow path starts at the inlets and passes to the sealed and, then through the aerosol generating article (which is in the recess), the through-hole implicitly eventually opens to the recess portion. Specifically, since this pathway is open, any portion within said pathway are open to each other.
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Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over AN et al. (US 2024/0206544), in view of ZUBER et al. (US 2018/0027884) as applied to claims 1, 8-10, 12, 13 and 15 above, and further in view of BATISTA (US 2017/0164657).
With respect to claim 11, modified AN et al. does not explicitly disclose that the heating chamber defines a rectangular cross section. BATISTA discloses that the chamber is rectangular and extends in the device axis (Figures 1A and 1B; Paragraphs [0015], [0084], [0097]). Such a shape allows for components to be easily handled during manufacture (Paragraph [0017]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide a rectangular chamber in modified AN et al., having the claimed features, as taught by BATISTA so that parts being manufactured for said chamber can be easily handled.
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Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over AN et al. (US 2024/0206544), in view of ZUBER et al. (US 2018/0027884) as applied to claims 1, 8-10, 12, 13 and 15 above, and further in view of LEE et al. (US 2020/0154765).
With respect to claim 14, modified AN et al. does not explicitly disclose the claimed stop. LEE et al. discloses an aerosol generating device (Abstract). The sealed end comprises rounded shaped stops formed by the distal wall for abutting with the aerosol generating device (Paragraphs [0116]-[0117]; Figure 8) in order to support the bottom surface of the cigarette and ensure an airflow path to the end of the cigarette. It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention, to provide the claimed stops in modified AN et al., as taught by LEE et al. in order to support the bottom surface of the cigarette and ensure an airflow path to the end of the cigarette
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEX B EFTA whose telephone number is (313)446-6548. The examiner can normally be reached 8AM-5PM EST M-F.
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/ALEX B EFTA/Primary Examiner, Art Unit 1745