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 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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “coil adjustment mechanism arranged to move the movable carrier along the receptacle” in claim 6.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. In this case, the corresponding structure to a “coil adjustment mechanism” is identified as “an actuator 165 configured to drive the carrier 161, and thereby the coil arrangement 117, to move along the axis 102. Examples of suitable actuators include, but are not limited to; screw mechanisms, rack and pinion arrangements, telescoping linear actuators, magnetic drives, and push-pull actuators. The actuator may comprise the rail e.g. as a rack in a rack and pinion arrangement. The actuator may comprise one or more electric motors” (Specification page 14, lines 1-7).
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-4, 6-8, 10, 11, 13, 14, 16, 17, 20, 22, 23, 25, and 26 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Batista et al. (WO 2021037826A1).
Claim 1. Batista et al. discloses an aerosol-generating device 10 comprising a cavity 12 (receptacle) for receiving an aerosol-generating article comprising aerosol-forming substrate. The device further comprises an induction heating arrangement. The induction heating arrangement comprises a susceptor arrangement 14 and an induction coil 16. The induction coil 16 is arranged at least partly surrounding the susceptor arrangement 14. The induction coil 16 is arranged axially movable along the susceptor arrangement 14. The induction heating arrangement comprises a guiding element 42 configured to guide the axial movement of the induction coil 16 (coil is movable in the housing) (Abstract; Figures 1 and 2 where the cavity 12 (receptacle) extends through the coil 16).
Claim 2. Batista et al. discloses that the induction coil(s) may be a planar coil disposed around part of the circumference of the cavity or fully around the circumference of the cavity. As used herein a "planar coil" means a spirally wound coil having an axis of winding which is normal to the surface in which the coil lies. The planar coil may lie in a flat Euclidean plane (Page 11, lines 3-8).
Claim 3. Batista et al. discloses that to facilitate movement of the induction coil 16, a guiding element 42 (movable carrier) is provided. The guiding element 42 is engaged with a guiding slot 44 of the housing 24 of the aerosol generating device. The guiding element 42 partly surrounds the induction coil 16. The induction coil 16 is mounted on the guiding element 42. The guiding element 42 is movable within the guiding slot 44. Movement of the guiding element 42 within the guiding slot 44 results in a movement of the induction coil 16 from the position shown in Figure 1 to the position shown in Figure 2 (Page 20, lines 9-15; Figures 1 and 2).
Claim 4. Batista et al. discloses that guiding element 42 (movable carrier) comprises a plate and the induction coil 16 is inside (on a first side) of the plate (Figures 1 and 2).
Claim 6. Batista et al. discloses that the aerosol-generating device may further comprise a motor (coil adjustment mechanism) for moving the induction coil. The aerosol-generating device may be configured to automatically move the induction coil between the first heating position and the second heating position. The motor may be an electric motor (Page 3, lines 32-35).
Claim 7. Batista et al. discloses that the cavity 12 (receptacle) is elongate and the induction coil 16 is movable in a longitudinal direction along the cavity 12 (receptacle) (Figures 1 and 2).
Claim 8. Batista et al. discloses that control of the motor may be facilitated by a controller as described herein. The controller may be configured to control the operation of the motor depending upon an operation time of the induction coil. If the induction coil is placed in a specific position such as the first heating position and operated for a time exceeding a predetermined threshold, the controller may control the motor to move the induction coil towards a further position such as the second heating position (Page 4, lines 6-11). The susceptor arrangement 14 comprises multiple susceptors in figure 1, in which three susceptors are depicted. Apart from the first susceptor 22, a second susceptor 30 and a third susceptor 34 are depicted. The induction coil 16 is configured to be movable between different heating positions (pre-defined positions). Each heating position of the induction coil 16 corresponds to a position surrounding a susceptor 22, 30, 34 (Page 19, lines 8-21; Figures 1 and 2).
Claim 10. Batista et al. discloses that the controller may be configured to control the supply of power to the induction coils from the power supply. The controller may comprise a microprocessor, which may be a programmable microprocessor, a microcontroller, or an application specific integrated chip (ASIC) or other electronic circuitry capable of providing control. The controller may comprise further electronic components. The controller may be configured to regulate a supply of current to the induction coils. Current may be supplied to one or both of the induction coils continuously following activation of the aerosol-generating device or may be supplied intermittently, such as on a puff by puff basis (Page 8, lines 3-11).
Claims 11 and 13. Batista et al. discloses that the induction heating arrangement may be configured to generate heat by means of induction. The induction heating arrangement comprises an induction coil and a susceptor arrangement (heating element). The susceptor arrangement may comprise blade shaped susceptors. The blade shaped susceptors may be arranged inside of the cavity (protrudes in the receptacle). The blade shaped susceptors may be arranged for holding the aerosol-generating article, when the aerosol-generating article is inserted into the cavity (Page 5, line 34 – Page 6, line 21). The susceptor arrangement is a conductive element that heats up when subjected to a changing magnetic field (Page 9, lines 34-35). The susceptor arrangement may be formed from any material that can be inductively heated to a temperature sufficient to aerosolise an aerosol-forming substrate. Suitable materials for the susceptor arrangement include graphite, molybdenum, silicon carbide, stainless steels, niobium, aluminium, nickel, nickel containing compounds, titanium, and composites of metallic materials. Preferred susceptor arrangements comprise a metal or carbon. Advantageously the susceptor arrangement may comprise or consists of a ferromagnetic material, for example, ferritic iron, a ferromagnetic alloy, such as ferromagnetic steel or stainless steel, ferromagnetic particles, and ferrite. A suitable susceptor arrangement may be, or comprise, aluminium (Page 12, lines 27-35).
Claim 14. Batista et al. discloses that inside of the cavity, a susceptor arrangement 14 is arranged. The inner diameter of the susceptor arrangement 14 may correspond or may be slightly smaller than the outer diameter of the aerosol-generating article 12. The aerosol-generating article 12 may be held by the susceptor arrangement 14 after insertion of the aerosol-generating article 12 into the cavity. Alternatively, the inner diameter of the susceptor arrangement 14 may be larger than the outer diameter of the aerosol-generating article 12. The susceptor arrangement 14 may have a tubular shape (Page 18, lines 21-27).
Claim 16. Batista et al. discloses that the susceptor arrangement 14 (heating element) may have a tubular shape (Page 18, lines 26-27).
Claim 17. Batista et al. discloses that the susceptor arrangement 14 comprises multiple susceptors in figure 1, in which three susceptors are depicted. Apart from the first susceptor 22, a second susceptor 30 and a third susceptor 34 are depicted. The induction coil 16 is configured movable between different heating positions. Each heating position of the induction coil 16 corresponds to a position surrounding a susceptor 22, 30, 34 (Page 19, lines 8-21; Figures 1 and 2).
Claim 20. Batista et al. discloses an aerosol-generating device 10 comprising a cavity 12 (receptacle) for receiving an aerosol-generating article comprising aerosol-forming substrate. The device further comprises an induction heating arrangement. The induction heating arrangement comprises a susceptor arrangement 14 and an induction coil 16. The induction coil 16 is arranged at least partly surrounding the susceptor arrangement 14. The induction coil 16 is arranged axially movable along the susceptor arrangement 14. The induction heating arrangement comprises a guiding element 42 configured to guide the axial movement of the induction coil 16 (coil is movable in the housing) (Abstract; Figures 1 and 2 where the cavity 12 (receptacle) extends through the coil 16). The induction coil(s) may be a planar coil disposed around part of the circumference of the cavity or fully around the circumference of the cavity. As used herein a "planar coil" means a spirally wound coil having an axis of winding which is normal to the surface in which the coil lies. The planar coil may lie in a flat Euclidean plane (Page 11, lines 3-8). The induction heating arrangement may be configured to generate heat by means of induction. The induction heating arrangement comprises an induction coil and a susceptor arrangement (heating element) (Page 5, line 34 – Page 6, line 21). The susceptor arrangement is a conductive element that heats up when subjected to a changing magnetic field (Page 9, lines 34-35). The susceptor arrangement may be formed from any material that can be inductively heated to a temperature sufficient to aerosolise an aerosol-forming substrate (Page 12, lines 27-35).
Claims 22 and 23. Batista et al. discloses that inside of the cavity, a susceptor arrangement 14 is arranged. The inner diameter of the susceptor arrangement 14 may correspond or may be slightly smaller than the outer diameter of the aerosol-generating article 12. The aerosol-generating article 12 may be held by the susceptor arrangement 14 after insertion of the aerosol-generating article 12 into the cavity. Alternatively, the inner diameter of the susceptor arrangement 14 may be larger than the outer diameter of the aerosol-generating article 12. The susceptor arrangement 14 may have a tubular shape (Page 18, lines 21-27).
Claim 25. Batista et al. discloses that the induction heating arrangement may be configured to generate heat by means of induction. The induction heating arrangement comprises an induction coil and a susceptor arrangement (heating element). The susceptor arrangement may comprise blade shaped susceptors. The blade shaped susceptors may be arranged inside of the cavity (protrudes in the receptacle). The blade shaped susceptors may be arranged for holding the aerosol-generating article, when the aerosol-generating article is inserted into the cavity (Page 5, line 34 – Page 6, line 21).
Claim 26. Batista et al. discloses that the susceptor arrangement 14 comprises multiple susceptors in figure 1, in which three susceptors are depicted. Apart from the first susceptor 22, a second susceptor 30 and a third susceptor 34 are depicted. The induction coil 16 is configured movable between different heating positions. Each heating position of the induction coil 16 corresponds to a position surrounding a susceptor 22, 30, 34 (Page 19, lines 8-21; Figures 1 and 2).
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 19 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Batista et al. (WO 2021037826A1) in view of Zuber (US 2016/0295926).
Claim 19. Batista et al. discloses the device of claim 1 wherein the susceptor arrangement 14 is arranged inside the cavity (Page 18, lines 21-27) but does not disclose wherein the receptacle is free of heating material that is heatable by penetration with a varying magnetic field.
Zuber discloses an aerosol-generating rod which may comprise one or more susceptor elements for inductive heating. Such susceptor elements may be incorporated into the aerosol-generating rod as threads or wires of suitable susceptor material. Such susceptor elements may be incorporated on or in the sheet of non-tobacco material, for example susceptor elements may be printed onto a surface of the sheet of non-tobacco material ([0017]).
It would have been obvious to one of ordinary skill in the art before the effective filing date that the device of Batista et al. use an aerosol-generating rod with susceptor elements incorporated in the rod instead of a susceptor element located within the cavity in order to limit use of the device to specific aerosol-generating rods (aerosol-generating rods without incorporated susceptor elements could not be used).
Claim 21. Batista et al. discloses the system of claim 20 wherein the susceptor arrangement 14 is arranged inside the cavity (Page 18, lines 21-27) but does not disclose wherein the article comprises the heating element.
Zuber discloses an aerosol-generating rod which may comprise one or more susceptor elements for inductive heating. Such susceptor elements may be incorporated into the aerosol-generating rod as threads or wires of suitable susceptor material. Such susceptor elements may be incorporated on or in the sheet of non-tobacco material, for example susceptor elements may be printed onto a surface of the sheet of non-tobacco material ([0017]).
It would have been obvious to one of ordinary skill in the art before the effective filing date that the device of Batista et al. use an aerosol-generating rod with susceptor elements incorporated in the rod instead of a susceptor element located within the cavity in order to limit use of the device to specific aerosol-generating rods (aerosol-generating rods without incorporated susceptor elements could not be used).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Katherine A Will whose telephone number is (571)270-0516. The examiner can normally be reached Monday-Friday 10:00AM-6:00PM(EST).
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/KATHERINE A WILL/Primary Examiner, Art Unit 1747