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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 11,969,545.
Claim 1 of the instant application is a broader version of the patented claim 1 (The patented claim 1 is directed to an aerosol delivery device comprising a housing, a reservoir, a liquid delivery component and an atomizing assembly, while the instant claim is directed to only the liquid delivery component and atomizing assembly for use with an aerosol delivery device). All of the structural components of the instant claim 1 are included in the patented claim 1. Thus, the patented claim 1 anticipates the instant claim 1.
Claim 2 of the instant application is anticipated by the patented claim 2.
Claim 3 of the instant application is anticipated by the patented claim 3.
Claim 4 of the instant application is anticipated by the patented claim 4.
Claim 5 of the instant application is anticipated by the patented claim 5.
Claim 6 of the instant application is a broader version of the patented claim 6 (The patented claim 6 is directed to an aerosol delivery device comprising a housing, a reservoir, a liquid delivery component and an atomizing assembly, while the instant claim is directed to only the liquid delivery component and atomizing assembly for use with an aerosol delivery device). All of the structural components of the instant claim 6 are included in the patented claim 6. Thus, the patented claim 6 anticipates the instant claim 6.
Claim 7 of the instant application is anticipated by the patented claim 7.
Claim 8 of the instant application is anticipated by the patented claim 7.
Claim 9 of the instant application is anticipated by the patented claim 8.
Claim 10 of the instant application is anticipated by the patented claim 9.
Claim 11 of the instant application is anticipated by the patented claim 10.
Claim 12 of the instant application is anticipated by the patented claim 11.
Claim 13 of the instant application is anticipated by the patented claim 12.
Claim 14 of the instant application is anticipated by the patented claim 13.
Claim 15 of the instant application is anticipated by the patented claim 14.
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.
Claim 13 is 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 pre-AIA the applicant regards as the invention.
Claim 13 recites the limitation "the vibrating assembly" in line 2. There is insufficient antecedent basis for this limitation in the claim. It is suggested that the limitation be amended to read --the atomizing assembly--.
Allowable Subject Matter
Claims 1-12, 14, and 15 would be allowable if rewritten or amended to overcome the Double Patenting rejections set forth in this Office action. Alternatively, Applicant may file a Terminal Disclaimer to overcome the rejections.
Claim 13 would be allowable if rewritten or amended to overcome the Double Patenting Rejections (or with the filing of a Terminal Disclaimer) as well as the rejection under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
As to claim 1, Sur (US 2019/0014819 A1) represents the closest prior art to the claimed invention.
Sur discloses a liquid delivery and atomizing assembly (cartridge 104, Fig. 1, Fig. 2) for use with an aerosol delivery device 100 (paragraphs [0042],[0045]) the liquid delivery and atomizing assembly 104 comprising: a liquid delivery component 224 comprising a piezoelectric micropump 224 (see Fig. 2, paragraph [0050]) and an atomizing assembly (nozzle 220, Fig. 2) comprising a mesh plate (mesh 338, Fig. 3) and a piezoelectric vibrating component (piezoelectric material 336 driven to vibrate, Fig. 3, paragraphs [0065]-[0066]), wherein the piezoelectric micropump 224 is configured to deliver at least a portion of a liquid composition (from reservoir 218, Fig. 2) to the atomizing assembly 220 (paragraphs [0067]-[0068]).
However, Sur does not disclose that the piezoelectric micropump 224 and the piezoelectric vibrating component 336 are integrated together using a common piezoelectric element. Rather, Sur has the piezoelectric micropump 224 and the piezoelectric vibrating component 336 (part of nozzle 220) as separate elements with a microfilter 226 in between (see Fig. 2, paragraph [0067]).
As to claim 6, Sur (US 2019/0014819 A1) in view of Li et al. (A Microfluidic Pump/Valve Inspired by Xylem Embolism and Transpiration in Plants, 2012) represents the closest prior art to the claimed invention.
Sur discloses a liquid delivery and atomizing assembly (cartridge 104, Fig. 1, Fig. 2) for use with an aerosol delivery device 100 (paragraphs [0042],[0045]) the liquid delivery and atomizing assembly 104 comprising: a liquid delivery component 224 comprising at least a portion of a micropump 224 (see Fig. 2, paragraph [0050]); and an atomizing assembly (nozzle 220, Fig. 2) comprising a vibrating component (piezoelectric material 336 driven to vibrate, Fig. 3, paragraphs [0065]-[0066]) and a mesh plate (mesh 338, Fig. 3),
wherein the micropump 224 is configured to deliver at least a portion of a liquid composition (from reservoir 218, Fig. 2) to the atomizing assembly 220 (paragraphs [0067]-[0068]), wherein
Sur fails to disclose that the micropump comprises a biomimetic micropump comprising a xylem model component and a leaf model component, wherein the liquid delivery component includes a first portion of the biomimetic micropump, and wherein the atomizing assembly includes a second portion of the biomimetic micropump
While Li teaches a biomimetic micropump system (Pg 717 Abstract, Fig 1)., wherein the biomimetic micropump system (Pg 717 Abstract, Fig 1) comprises a xylem model component (microchannel of a microfluidic chip, Pg 3 para 6, Fig 1 supports biological xylem, Fig 2 depicts microchannel) and a leaf model component (leaf model is made up of a silicon sheet with micropores and an agarose gel, each of these structures can be considered a leaf model component, Abstract & Pg 2 para 1, Fig 1), the prior art of record does not disclose or render obvious wherein the liquid delivery component includes a first portion of the biomimetic micropump, and wherein the atomizing assembly includes a second portion of the biomimetic micropump.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Lamb et al. (A synthetic leaf: the biomimetic potential of graphene oxide, 2015) is cited to show materials that are functionally similar to those in plant cell walls involved in water transport.
Liu et al. (Evaporation characteristics of micropores in biomimetic micropump, 2014) is cited to show a biomimetic micropump.
Li et al. (A Micropump Based on Water Potential Difference in Plants, 2011)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VALERIE L WOODWARD whose telephone number is (571)270-1479. The examiner can normally be reached on Monday - Friday 8:30 am - 4:30 pm.
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/VALERIE L WOODWARD/Primary Examiner, Art Unit 3785
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