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 .
Response to Amendment
Amendment filed 7/9/2026 has been entered and fully considered. Claims 1-15 are pending. Claims 1, 4, 9, 10, 12, 14 and 15 are amended. No new matter is added.
Response to Arguments
Applicant's arguments filed 7/9/2026 have been fully considered but they are not persuasive.
Applicant argues that the Examiner’s interpretation of the teachings of An is inconsistent with the language recited in claim 1. Specifically, claim 1 requires that the airflow path extends between a flow inlet and a flow outlet through the opening end of the heating chamber. However, the Examiner clearly relies on the open end of the heater changer of An as being the inlet and outlet, but asserts that the inlet is arranged on the side wall. Examiner is reading the open end of the heating chamber as two separate components.
Examiner respectfully disagrees. The opening to the cavity,310, within the device body, 100, represents the open end of the heating chamber, not the opening within support 300.
[AltContent: textbox (Airflow to user through flow outlet)][AltContent: arrow][AltContent: textbox (Open end of cup-shaped heating chamber)][AltContent: textbox (Airflow to user through flow outlet)][AltContent: arrow][AltContent: textbox (Airflow into chamber)][AltContent: arrow][AltContent: ]
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As seen by arrow 500 (Paragraph [0066], annotated figure 5 above) the airflow passes through this opening twice. The inflow of air into chamber through the open end of the heating chamber represents the claimed flow inlet. As seen in figure 5, the airflow passing through the inlet passes along the side wall of 100 and between the sidewall, 100, and outer side wall of 300 (Paragraph [0077]). As seen in figure 1-3 of AN et al. and paragraphs [0051] and [0076]-[0078], the airflow then passes through the aerosol generating article, 20 and into the users mouth. As the airflow passes out of the opening and into the user’s mouth, the air has passed through a flow outlet, that also happens to pass through the open end of the heating chamber.
Thus, the heating chamber is not represented by support, 300, but by the opening in the case, 100, in which the support and aerosol generating article are placed.
Examiner further notes that while figure 5 discloses that the heater, 200, is provided on the body of the device, 100, and inserts into the inner chamber of 300, AN et al. also discloses that the aerosol generating article itself may comprise a susceptor (Paragraph [0038]), which is then heated by an induction heater. Thus, the cup shaped heating chamber in 100, receives the heating part (e.g., susceptor) when the aerosol generating article is placed within the chamber in 100. This allows for the chamber in 100 to be considered the claimed cup-shaped heating chamber, and not the support 300.
Applicant argues that a person having ordinary skill in the art would not use the teachings of Zuber to cure the deficiencies of AN. The blind cavity of Zuber is the cartridge, and not the chamber.
Examiner does not disagree that the sealing disclosed in Zuber is related to the cartridge itself. The problem that the art (e.g., AN et al.) discusses is the prevention of airflow taking an unexpected path from the define flow path (Paragraphs [0008], [0078]). AN et al. does not further expound on how this is accomplished. ZUBER describes a manner in which a system (e.g., the cartridge) can be seal, and that is to have vapor impermeable external walls defining the blind cavity (Paragraph [0008]).
The courts have generally held that in order for a reference to be proper for use in an obviousness rejection under 35 U.S.C. 103 , the reference must be analogous art to the claimed invention. In re Bigio, 381 F.3d 1320, 1325, 72 USPQ2d 1209, 1212 (Fed. Cir. 2004). A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). MPEP 2144.01(a), I.
In the instant case, ZUBER is from the same field of endeavor (e.g., aerosol generating devices) and is pertinent to the problem describes by AN et al. (e.g., preventing vapor (or airflow in the case of AN et al.) from being able to take an errant path by providing air impermeable walls for the blind cavity (e.g., chamber of AN et al.).
The courts have generally held that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
In this case, the cartridge itself doesn’t need to be bodily incorporated into the teachings of AN et al.. The manner in which air is prevent from taking errant pathways is. Thus, the air impermeable walls of the chamber are incorporated into the teachings of AN et al.
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, when inserted into the chamber, by providing said substrate in the heating chamber.
The limitations of claim 9 relies on features belonging to an aerosol generating article, which is not being positively claimed.
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).
The device is capable of having the inlet facing ventilation holes in an aerosol generating substrate, when inserted into the chamber, by providing said substrate in the heating chamber.
The limitations of claims 10 and 12 rely on features belonging to an aerosol generating article, which is not being positively claimed.
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
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 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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Tucker can be reached at 571-272-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALEX B EFTA/Primary Examiner, Art Unit 1745
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