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
Applicant’s election without traverse of Group I, encompassing claims 1-12, 14, 16-18, and 20, and accompanying withdrawal of claims 21-22 and 24, in the reply filed on 06/09/2026 is acknowledged. Claims 1-12, 14, 16-18, and 20 are examined herein.
Specification
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
The following title is suggested: AEROSOL PROVISION DEVICE WITH PLURALITY OF AEROSOL TRANSMISSION CHANNELS.
Claim Interpretation
Claims 1-12, 14, 16-18, and 20 are directed to an “aerosol provision device for generating aerosol from an aerosol generating article comprising portions of aerosol generating material”. The “aerosol generating article” and components thereof, such as the “portions of aerosol generating material”, are not positively recited components of the claimed device, but rather recite a mere intended use of the device. Therefore, for purposes of this office action, in claims 1-12, 14, 16-18, and 20, the recited “aerosol generating article” and components thereof are considered to have patentable weight only to the extent they dictate the structure of the claimed device. See MPEP 2111.02(II); see also Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020); see also MPEP 2115; see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).
Claim Objections
Claim 9 is objected to because of the following informalities:
Claim 9 recites “the at least one aerosol generating region”, but claim 1 previously introduced “a plurality of aerosol generating regions”. Claim 9 should be amended to properly refer back to the plurality, for instance by reciting “the plurality of aerosol generating regions”;
Appropriate correction is required.
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 4-5, 7-9, 17, and 20 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.
Claim 4 recites that “the consistency of aerosol generated…is substantially constant when exiting the outlet” (underline added), but it is unclear what claim scope is set forth by the word “consistency” in this context. The specification does not remedy the lack of clarity because it does not specifically define the term, it describes numerous parameters in relation to consistency (see p. 1 describing “consistent delivery” as providing the same taste or desired effect, p. 13 describing a “consistent aerosol per inhalation” being measured “in terms of total aerosol generated, or a total constituent delivered, for example”, p. 17-18 describing maintaining “consistency” by heating based on distance traveled), and because one of ordinary skill in the art would understand the “consistency of aerosol” to potentially refer to additional delivery parameters such as temperature, pressure, flowrate, and composition. Thus it is unclear whether the claimed “consistency” refers to one, some, or all of these parameters. The Examiner recommends amending the claim to recite the “consistency” of a specific parameter in order to clearly set forth the boundaries of the claim and remedy the lack of clarity. For purposes of this office action, claim 4 is interpreted as reciting “the consistency of a total amount of aerosol generated”;
Claims 4-5 and 20 each recite “substantially”, which is a relative term which renders the claims indefinite. The term “substantially” 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. Thus, it is not clear what boundaries of claim scope are set forth by “substantially constant” in claims 4-5 and “substantially the same” in claim 20. For purposes of this office action, the claims are interpreted as not reciting “substantially” in each instance;
Claims 7-9 each recite “the heating profile”. There is insufficient antecedent basis for this limitation in the claim. For purposes of this office action, each claim is interpreted as reciting “a[[the]] heating profile”;
Claim 17 recites “the outlet”. There is insufficient antecedent basis for this limitation in the claim. For purposes of this office action, each claim is interpreted as reciting “an[[the]] outlet”.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 14, and 16-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Van Lancker (WO 2020/100034 A1, provided in IDS dated 11/27/2023).
Regarding claim 1, Van Lancker is directed to an aerosol-generating device including a heater array to generate aerosol using aerosol-generating articles (Abstract) (which reads on an “aerosol provision device” as claimed):
The article includes different portions which are heated (p. 9 l. 26-30) (which reads on “an aerosol generating article comprising portions of aerosol generating material”, though the “article” and its sub-components are not required structural elements of the claimed “device”, see Claim Interpretation).
The device includes one or more outlets 104 (“aerosol transmission channels”) which deliver aerosol from the article to a user (p. 20 l. 24-p. 21 l. 5, Fig. 1).
The device includes a heater array 120 with a plurality of heating elements 122 (“aerosol generating regions”) in rows and columns to heat the portions of the article (p. 21 l. 10-22). As shown in Fig. 1, the heating elements 122 are “adjacent” and “in fluid communication” with the outlets 104.
A controller 109 and heating circuitry 145 (together “control circuitry”) enable individual control of each heating element 122 (p. 21 l. 23-31, Figs. 3-5).
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Regarding claim 2, the device includes a cavity 105 (“chamber”) for receiving the article 130 (p. 20 l. 14-19, Figs. 1-2).
Regarding claim 3, the device includes the heater array 120 with the plurality of heating elements 122 (“aerosol generating regions”), as set forth above in the discussion of claim 1, which reads on “wherein each aerosol generating region is defined by a respective heating element”.
Regarding claim 14, the outlets 104 (“aerosol transmission channels”) deliver aerosol to a user through an opening (“outlet”) at a proximal end 108 of the device (p. 20 l. 24-p. 21 l. 5, Figs. 1-2).
Regarding claim 16, the device has a central airway (“central aerosol transmission channel”) beginning at inlets 102, running through cavity 105 and outlets 104, and ending at a proximal end 108 of the device (p. 20 l. 24-p. 21 l. 5, Figs. 1-2) (and thus the outlets 104 are “enclosed by a volume defined by” the central airway; compare Figs. 1-2 with Applicant’s Figs. 4-5 showing central aerosol transmission channel 50).
Regarding claim 17, the central airway delivers aerosol to a user through an opening (“outlet”) at a proximal end 108 of the device (p. 20 l. 24-p. 21 l. 5, Figs. 1-2), and is therefore in “fluid communication” as claimed.
Regarding claim 18, the central airway includes the inlets 102 (“air supply holes”) which allow entry of external air (p. 20 l. 24-p. 21 l. 5, Figs. 1-2), which reads on the claim language.
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 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.
Claims 4-9 are rejected under 35 U.S.C. 103 as being unpatentable over Van Lancker (WO 2020/100034 A1) as applied to claim 1, in view of Collet (US 2014/0060554 A1, provided in IDS dated 11/27/2023).
Van Lancker generally teaches that the heater array provides highly-customizable heating (p. 3 l. 29-p. 4 l. 8) and that the controller may activate individual heating elements or create heating zones to maintain consistent aerosol generation, as well as perform different temperature profiles in order to optimize pre-heating and aerosol creation (p. 15 l. 28-p. 16 l. 31). However, Van Lancker fails to specifically disclose the controller 109 and heating circuitry 145 being configured to set a heating profile of the heating elements 122:
“such that the consistency of aerosol generated at the different aerosol generating regions is substantially constant when exiting the outlet” per claim 4;
“to generate an amount of aerosol from the respective portion of aerosol generating material such that, regardless of distance of the respective portion of aerosol generating material from an outlet of the aerosol provision device, a substantially constant amount of aerosol passes through the outlet of the aerosol provision device” per claim 5;
“to generate an amount of aerosol from the respective portion of aerosol generating material that is proportional to the distance of the respective portion from an outlet of the aerosol provision device” per claim 6;
“so that the operational temperature of at least one aerosol generating region is based on the distance of the respective portion of aerosol generating material from an outlet of the aerosol provision device” per claim 7;
“so that the operational temperature of the aerosol generating regions closer to an outlet of the aerosol provision device is lower than the operational temperature of the heating elements further from the outlet of the aerosol provision device” per claim 8; and
“so that the heating duration for the at least one aerosol generating region is based on the distance of the respective portion of aerosol generating material from an outlet” per claim 9.
Collett is directed to an electronic smoking article comprising one or more microheaters (Title). Collett teaches that the microheaters provide for improved control of vaporization (Abstract). Collet teaches that the microheaters 50 are paired with various substrates 600 in heater wells 610 ([0105], Fig. 5). A controller can activate the microheaters 50 according to different algorithms corresponding to the different components of the substrates 600, such as different temperatures, different lengths of time, or heating in a specific sequence [0107]. The microheaters form a heating array; they can be in different spatial alignments and can heat portions of a substrate 600 in a specific order ([0111], Figs. 5-7). Collett teaches that this achieves consistent aerosolization of different substrates 600 (Abstract, [0126]). Therefore, in the event that a plurality of substrates 600 are provided such that those requiring lower temperature or less heating time are located closest to a mouth opening 18 of the device (and vice versa), it would be obvious for the microheaters 50 to heat the substrates 600 to provide a consistent amount of aerosol generation to the user at the mouth opening 18 (i.e., heating the closest substrates 600 at lower time and/or temperature), which reads on the claim language of each of claims 4-9. One of ordinary skill in the art would recognize that Van Lancker’s heating array 120 could predictably be configured to heat various substrates 600 requiring different temperatures, similar to Collett’s heater array.
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Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Van Lancker by configuring the heating elements 122 to heat an article comprising various substrates 600 such that those requiring lower temperature or less heating time are located closest to the outlets 104 and are heated to generate a consistent amount of aerosol at the outlets 104, because Van Lancker and Collett are both directed to aerosolization devices, Collett teaches that this advantageously allows improved control and consistency of aerosolization, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Van Lancker (WO 2020/100034 A1) as applied to claim 1, in view of Woods (WO 2020/097737 A1, provided in IDS dated 11/27/2023).
Van Lancker fails to disclose the limitations of claims 10-11.
Woods is directed to apparatus and methods for multi-chamber, multi-atomizer vaporization devices (Title). Woods teaches that conventional vaporization devices use a single chamber for storing a single vaporization substance, but it would be desirable to include multiple chambers for multiple substances [0006]. Woods discloses valves 520, 522, 524, 526, 528 (“valves” per claim 10) in the device 500 which control individual release of the vaporization substances from their chambers ([0120-22], Fig. 5). Woods further discloses a valve 540 (“valves” per claim 10) for controlling the flow of vapor from the atomizer 538 to the mouthpiece 542 to provide additional dosage control ([0151], Fig. 5). The valves can be selectively controlled by a user input device 534 and/or by a controller 530 [0123-26] (“selectively controlled” per claim 11). Woods teaches that the multiple vaporization substances are mixed and then vaporized by an atomizer [0118], Woods teaches that the controller 530 controls power to both the valves and other components of the device (such as the atomizer) [0125], and Woods teaches that the user input device 534 includes a button 144 [0122] which activates the atomizer [0107]. In view of these teachings, it would be obvious to selectively control the valves in response to activation of the atomizer (“in response to activation or deactivation of the plurality of aerosol generating regions” per claim 11).
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One of ordinary skill in the art would recognize that Van Lancker’s heater array 120, controller 109, and heating circuitry 145 could similarly be used to heat an article comprising multiple substances provided in multiple chambers, in combination with one or more of Woods’ valves 520, 522, 524, 526, 528 and/or 540 arranged upstream and/or downstream of the heater array 120 and article. For instance, valves 520, 522, 524, 526, 528 could be arranged between the substances and the heating elements 122, and/or valves 540 could be arranged at the outlets 104, with such valves configured to be selectively controllable via the controller 109 and heating circuitry 145 in response to activation of the heater array 120 (which reads on “wherein the plurality of aerosol transmission channels further comprise one or more valves for selectively controlling flow of aerosol generated by the plurality of aerosol generating regions through the plurality of aerosol transmission channels” per claim 10 and “wherein the one or more valves are selectively controlled, activated or deactivated by the control circuity in response to activation or deactivation of the plurality of aerosol generating regions” per claim 11).
Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Van Lancker by incorporating one or more of Woods’ valves 520, 522, 524, 526, 528 and/or 540 as detailed immediately above, because both Van Lancker and Woods are directed to aerosolization devices, Woods teaches that this allows for individually controlled heating of multiple vaporization substances, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Van Lancker (WO 2020/100034 A1) as applied to claim 1.
Van Lancker discloses one or more inlets 102 (“air supply hole”) to draw air into the device and through the outlets 104 (p. 20 l. 24-p. 21 l. 5, Fig. 1). Van Lancker fails to specifically disclose one inlet 102 per outlet 104 (Fig. 1 shows fewer inlets 102 than outlets 104, for instance), and thus fails to specifically disclose “wherein the plurality of aerosol generating regions each comprise at least one air supply hole” (emphasis added). However, it would be a simple duplication of parts to provide additional inlets 102 so that the number of inlets 102 is equal to or greater than the number of outlets 104, which renders the claim language obvious. See MPEP 2144.04(VI)(B); see also In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Van Lancker (WO 2020/100034 A1) as applied to claim 1, in view of Hickey (EP 1267969 B1).
Van Lancker discloses the heater array 120 with a plurality of heating elements 122, as set forth above in the discussion of claim 1. Van Lancker fails to specifically disclose “wherein the plurality of aerosol generating regions are arranged evenly around a circumference and wherein each aerosol transmission channel extends radially inwards or outwards such that the flow path lengths from each aerosol generating region through each respective aerosol transmission channel is substantially the same”. Van Lancker discloses modifying characteristics of the heater array based on the identity of the aerosol-generating article to efficiently and effectively produce aerosol (p. 5 l. 13-22).
Hickey is directed to dry power inhaler devices (Title), which is in the same field of endeavor as the claimed invention (i.e., aerosolization devices). Hickey discloses dry powder inhalers with integrated dispersal systems configured with control systems that provide adjustable energy output responsive to a user's inspiratory capabilities and/or the flowability of the dry powder drug being administered [0033]. In particular embodiments, Hickey discloses individual drug doses 30 arranged in a circle, with corresponding active contacts pads 25u and transmission lines 26u extending toward a center opening 20o of an inhaler chamber 10 ([0035-41, 0057-61], Figs. 1-2, 11C) (which reads on “wherein the plurality of aerosol generating regions are arranged evenly around a circumference and wherein each aerosol transmission channel extends radially inwards or outwards such that the flow path lengths from each aerosol generating region through each respective aerosol transmission channel is substantially the same”). One of ordinary skill in the art would recognize that Van Lancker’s heating array 120 could similarly be arranged in a circular shape to predictably heat articles having a plurality of individually packaged doses, which would also allow adjusting energy output responsive to the flowability of the particular dry powder drug being administered as taught by Hickey. Furthermore, such a modification would be a mere change in shape of Van Lancker’s heating array 120 and article, which is obvious in view of the prior art. See MPEP 2144.04(IV)(B); see also In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
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Therefore, before the effective filing date of the claimed invention, it would have been obvious for one having ordinary skill in the art to modify Van Lancker by forming Van Lancker’s heating array 120 in a circular shape to accommodate an article having individually packaged doses in a circular shape, because Hickey teaches that this allows adjusting energy output responsive to the flowability of the particular dry powder drug being administered [0033], such a modification would involve a mere change in shape which is prima facie obvious in view of the prior art, and this would involve combining prior art elements according to known methods to yield predictable results. See MPEP 2143(I); see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL PATRICK MULLEN whose telephone number is (571)272-2373. The examiner can normally be reached M-F 10-7 ET.
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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 PATRICK MULLEN/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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