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(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 7 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 7 recites limitations already fully recited by claim 1 thus, it does not appear to further limit the structure of amended claim 1. At least lines 9-14 of amended claim 1 recite the limitations of claim 7. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claim(s) 31 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 4,582,071 to Wescott et al. (hereinafter Wescott).
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Westcott teaches an article “for use with a non-combustible aerosol provision device.” Notably the article of Westcott is capable of being used with a non-combusting aerosol generating device. A recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647. The article of Westcott comprises an aerosol generating material 11, a mouth end section 15, a tubular element 16 having a longitudinal axis and located between the aerosol generating material 11 and the mouth end section 15. For example, as shown in Figure 15, the tubular element 16 extends between the aerosol generating material 11 and the mouth end section 15. The tubular element 16 comprises an inner wall, and a ventilation area 17 in the tubular element through which air 88 is drawn into the tubular element, wherein a cylindrical coaxial component 19 is received in the tubular element 16. The component may take many forms. As shown in Figures 4, 12, 13, 16, 21, and 22, the component has an outer surface and is configured so that aerosol flow through the tubular element is diverted into a flow path 14 formed
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between the outer surface of the component and said inner wall of the tubular element, and wherein the ventilation area is configured such that ventilation air enters the flow path through the ventilation area 17 to mix with the aerosol which is flowing along the flow path, before flowing into said mouth end section. Note that Wescott discloses that tobacco smoke (aerosol) 89 enters the flow path 14 in the embodiment shown in Figures 14 and 15. See col.4, lines 45-68.
Allowable Subject Matter
Claims 1-6, 8-30, 32, and 33 are allowed.
The following is an examiner’s statement of reasons for allowance: With respect to claims 2, 3, 17, and 32, Westcott does not teach or suggest a spacer element such that the tubular element is located between the aerosol generating material and the spacer element and wherein the spacer element has a ventilation area through which air is drawn into the spacer element and mixes with the aerosol which flowed along the flow path, before flowing into the mouth end section.
As to claims 1, 4-30, and 32, Westcott does not teach or suggest the entire outer surface of the component is spaced from the inner wall of the tubular element to form a flow path between the outer surface of the component and the inner surface of the tubular element. Westcott, in all embodiments, teaches the component 19 has corrugations, crimps, dimples, or flutes that extend to contact the inner wall of the tubular element.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Claim 7 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed 15 July 2026 have been fully considered and are persuasive with respect to amendment independent claim 1 and the dependent claims thereof. However, as independent claim 31 has not been amended in the manner of claim 1, the rejection thereof is maintained.
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 ELIZABETH L MCKANE whose telephone number is (571)272-1275. The examiner can normally be reached Mon-Thu 6:30a-4:30p EST.
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, Patricia Engle can be reached at 571-272-6660. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ELIZABETH L MCKANE/Specialist, Art Unit 3991
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