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 .
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: rib 1240 is included in the reference signs list in paragraph [0089] in the description, however, this reference number is not found in the drawings.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-20 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 1 recites the second region being where the metal plates do not face each other with the resistive heat generator interposed therebetween in the thickness direction of the resistive heat generator. It is unclear as to what structure is required by this limitation. The claim could merely require that the second region metal plate portions are non facing in the heat generators thickness direction, or the absence of the generator between facing metal plate portions, or that the metal plates are merely not aligned or offset, etc. These interpretations impose different structural requirements, and the claim scope and required structure is accordingly unclear. For the purposes of this office action and compact prosecution the claim limitation is interpreted to require the absence of the heat generator therebetween the second portion of the two metal plates. Claims 2-20 are rejected by virtue of their dependence on claim 1.
Claim 3 recites the second regions are provided as partial cut-outs of the metal plates such that the metal plates do not face each other with the resistive heat generator interposed therebetween in the thickness direction of the resistive heat generator. Similar to the rejection of claim 1, it is unclear as to what structure is required by this limitation. The claim could merely require that the second region metal plate partial cutoff portions are non facing in the heat generators thickness direction, or the absence of the generator between facing metal plate portions, or that the metal plates are merely not aligned or offset, etc. These interpretations impose different structural requirements, and the claim scope and required structure is accordingly unclear.
For the purposes of this office action and compact prosecution the claim limitation is interpreted to require the absence of the heat generator therebetween the second portion of the two metal plates. Claims 4-5 are rejected by virtue of their dependence on claim 3.
Claim 4 recites the pair of metal plates in the second regions are partially cut out such that edges of the metal plates remain, the edges being located diagonally from each other in a cross-sectional shape of the resistive heat generator. (emphasis added for clarity). The claim is rejected because it is unclear exactly what structure is required by this emphasized portion of the claim limitation. It is also unclear which edge of the remaining cutout is required to be diagonal from each other. Its also unclear whether partially cut out in claim 4 is the same as the partial cutout in claim 3. The claim could be interpreted to require one of the edges of the remaining cutouts to be located offset from the other second region cutout, such that a diagonal relationship between the remaining cutouts exists, or the claim might require that the remaining cutout portion is located on an edge or end or opposite corner of the first region, however its unclear what, if any, structure is required by the claim between the first and second regions and their respective geometric relationship.
For the purposes of compact prosecution and this office action, the underlined portion of the claim limitation is interpreted to require an offset relationship between an edge of the two second regions of the metal plates in a cross sectional shape of the resistive heat generator such that a diagonal relationship exists between an edge of the two remaining second region cutouts of the two metal plates (e,g., the two second regions are offset from each other)
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.
Claims 1-7, 9, 11, 15, 18, and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Liu (CN 209807157 U), submitted by Applicant via IDS filed 4-19-2024, English machine translation relied upon.
Regarding Claim 1, Liu discloses an aerosol generation system [0068] comprising:
a resistive heat generator (PTC heater 201 is the resistive heater, when the heating element is energized through the metal electrode sheets, the current flows from the two sides of the PTC ceramic producing resistive heating [0045], see also instant specification [0055]-[0057] which discloses that a PTC heater is an example of a resistive heater).
a resistive heat generator that is capable of performing the intended use of heating an aerosol generating substrate from an inside thereof (the blade heater of Liu is intended to, and is capable of heating an aerosol generating substrate from an inside thereof). The Courts have held that if the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP § 2114.
a pair of metal plates ([0044], pair of electrode sheets 202) provided at opposite surfaces of the resistive heat generator (disposed on opposite sides of the ceramic resistive substrate heat generator 201 [0044]-[0045], see also [0052] and FIG 5-6), wherein
the pair of metal plates each include a first region and a second region (see annotated FIG 6 below,
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the first region being where the metal plates face each other with the resistive heat generator interposed therebetween in a thickness direction of the resistive heat generator (see FIG 6, the metal plates face eachother with the resistive heat generator interposed therebetween in the thickness direction of the heat generator),
the second region being where the metal plates do not face each other with the resistive heat generator interposed therebetween in the thickness direction of the resistive heat generator. (e.g., the resistive heat generator is not interposed therebetween the metal plates in the second region in the thickness direction, For the purposes of this office action the claim limitation is interpreted to require the absence of the heat generator therebetween the second region of the two metal plates as taught by Liu, see second region of annotated FIG 6, e.g., the projected lead portions 4 are portions of the plates 202 that extend beyond the resistive heat generator 201 which is absent therebetween the two plates as required by the claim, See also claim interpretation in the 112b rejection of claim 1 above)
Regarding Claim 2, Liu discloses the first regions are provided toward a leading end of the resistive heat generator to be inserted into the aerosol generating substrate, and the second regions are provided toward a trailing end opposite the leading end. (see Liu FIG 6, the first region is provided toward the leading end of the resistive heat generator intended to and capable of being inserted into the aerosol generating substrate and the second region is provided towards the trailing end, see annotated FIG 6 above; The Courts have held that if the prior art structure is capable of performing the intended use (e.g., that the pointed first region is capable of being inserted into the aerosol generating substrate), then it meets the claim. See MPEP § 2114.
Regarding Claim 3, Liu teaches metal electrode plates 202 having trailing lead portions 4 for connection to a power supply [0041], FIG 6. Liu illustrates that these metal electrode plates 202 have broader ceramic contacting portions and narrower trailing lead portions 4 having lateral recesses adjacent to the lead portions (see FIG 6 second region annotated above). These lateral recesses correspond to the claimed partial cut-outs, while the remaining lead portions 4 correspond to the second regions. Under the interpretation stated, ceramic heat generator 201 is absent between those second region portions in the thickness direction.
The claim language “provided as partial cut-outs” is product by process language. Patentability is determined from the resulting product, including the structure imparted by the recited process, rather than whether the prior art product was manufactured by that same process. Liu’s illustrated recessed plate provides the same resulting structure irrespective of whether they were produced by cutting, stamping, or another manufacturing process. Accordingly the absence of an express cutting step in Liu does not itself distinguish the claimed product.
The determination of patentability is based upon the product or apparatus structure itself. Patentability does not depend on its method of production or formation. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP § 2113 I.
Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing a nonobvious difference between the claimed product and the prior art product. See MPEP § 2113 II.
Regarding Claim 4, Liu discloses the pair of metal plates in the second regions are partially cut out such that edges of the metal plates remain, the edges being located diagonally from each other in a cross-sectional shape of the resistive heat generator. (e.g., the edges (4) of the plates (202) are located geometrically offset from each other in a cross sectional shape of the resistive heat generator forming a diagonal relationship between edges of the two second regions of the plates as required, see FIG 6 and 112b rejection of claim 4 above with claim interpretation which requires an offset relationship between an edge of the two second regions of the metal plates in a cross sectional shape of the resistive heat generator such that a diagonal relationship exists between an edge of the two remaining second region cutouts of the two metal plates (e,g., an edge of the two second regions are offset from eachother)
Regarding Claim 5, Liu discloses the metal plates cut out in the second regions have a rectangular shape (see FIG 6, the cutout portions of the second regions have a rectangular shape).
Regarding Claim 6, Liu discloses a securing section (base 1) having an insertion section (mounting hole 3) into which the metal plates and the resistive heat generator are inserted (see FIG 5 and 6, and [0046]), the securing section secures the metal plates and the resistive heat generator to a housing (e.g., the smoking device housing that supports base 1, e.g., the base 1 is secured to the housing upon assembly of the aerosol generating device. The Courts have held that if the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP § 2114.
Regarding Claim 7, Liu discloses the metal plates (202) in the second regions (4) and the resistive heat generator (201) are inserted into the insertion section. (e.g., see FIG 5, the metal plates in the second regions and the resistive heat generator are illustrated as being inserted and mounted into the insertion section, see also [0046], during assembly the 201 and 202 which includes the first and second regions, are inserted into the base, an ordinary artisan would appreciate the second regions are inserted and mounted into the insertion section 3 of the base 1 during assembly).
Regarding Claim 9, Liu discloses/illustrates the securing section has a generally rectangular tabular shape (see securing section base 1 depicted in FIG 6, which is rectangular and tabular in shape).
Regarding Claim 11, Liu discloses the resistive heat generator has a tabular shape (e.g., see FIG 5-6; Liu teaches the resistive heat generator is a heating blade which has a generally tabular shape).
Regarding Claim 15, Liu discloses the resistive heat generator has an angularly protruding shape toward a leading end to be inserted into the aerosol generating substrate. (e.g., see FIG 6, the leading pointy end of 201 is pointed and angularly protruding, and capable of being inserted into the aerosol generating substrate) The Courts have held that if the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP § 2114.
Regarding Claim 18, Liu discloses the resistive heat generator is a PTC heater. [0008]
Regarding Claim 19, Liu discloses the resistive heat generator contains barium titanate [0045].
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.
Claims 8 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (CN 209807157 U), submitted by Applicant via IDS filed 4-19-2024, English machine translation relied upon as applied to claim 6 and 1 respectively, and in view of Mahler (US 20180235278A1).
Regarding Claim 8, Liu discloses the securing section is a securing section [0046], however Liu is silent to suitable materials from which the base/securing section should be manufactured and therefore Liu fails to explicitly disclose the securing section is composed of a super engineering plastic material. The instant specification describes a super engineering plastic material as a material with high heat resistance and high mechanical strength such as PEEK. [0067]
Mahler teaches an aerosol generating device with a blade heater and teaches the insertion section mount for a blade heater should suitably be made from a moldable polymeric material such as PEEK, which is a preferred material because it is moldable and suitable for use in mounting heaters in aerosol generating devices in an inexpensive manner and is suitable for firmly holding the heater. See [0013]- [0014]
It would be obvious for a person of ordinary skill in the art before the filing date of the claimed invention to modify the securing section of Liu to be composed of a super engineering plastic material such as PEEK because such a modification would result in the securing section of the device of Liu being moldable and suitable for use in mounting heaters in aerosol generating devices in an inexpensive manner as taught by Mahler [0014].
Regarding Claim 13, Liu discloses the heating blade for the aerosol generating device as set forth above. However, Liu fails to explicitly disclose further comprising the aerosol generating substrate into which the resistive heat generator and the metal plates are inserted.
However, Mahler teaches the heater blade pierces and is directly inserted into the aerosol forming substrate [0082], see also FIG 4, which allows the heating blade to heat the aerosol forming substrate releasing volatile aerosol compounds to be delivered to the users mouth. [0084].
It would be obvious to a person of ordinary skill in the art before the filing date of the claimed invention to modify the device of Liu to further comprise the aerosol generating substrate of Mahler into which the resistive heat generator and metal plates are inserted so that the heating blade can heat aerosol forming substrate release volatile aerosol compounds to be delivered to the users mouth (Mahler [0084]).
Claims 10 is rejected under 35 U.S.C. 103 as being anticipated by Liu (CN 209807157 U), submitted by Applicant via IDS filed 4-19-2024, English machine translation relied upon as applied to claim 6, and in view of Courbat (US20200107579A1).
Regarding Claim 10, Liu teaches the plates can be made of nickel [0066] but fails to explicitly disclose that each of the metal plates suitable for use in the heater is composed of a nickel-containing iron alloy.
However, Courbat teaches heating blades for aerosol generating devices that resistively heat an aerosol forming substrate (see title) and teaches suitable heating element materials for heating blades can comprise suitable metal alloys such as nickel containing iron alloys, nickel-cobalt-iron/ferrous allow such as Kovar, Fernico, or permalloy. [0014]. Courbat teaches these alloy materials can be selected for their preferred/desired Curie temperature, e.g., the respective Curie temperature of the heating element material is such that the heating element reaches the target temperature but does not overheat past the target temperature and therefore prevents undesired overheating of the heating element. [0008]-[0009] and [0011]. See also [0110], two solid permalloy layers 110.1 and 110.2 on opposite sides of support layer 110.3.
Accordingly it would have been obvious to a person of ordinary skill in the art before the filing date of the claimed invention to modify the material selected for the construction of the metal plates of Liu to be made from a nickel containing iron alloy with a Curie temperature that reaches the target temperature but does not overheat past the target temperature and therefore prevents undesired overheating of the heating element and taught by Courbat [0008]-[0014].
Claims 12, 14, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (CN 209807157 U), submitted by Applicant via IDS filed 4-19-2024, English machine translation relied upon.
Regarding Claim 12, Liu discloses the claim limitations set forth above. Additionally, Liu teaches a tabular shape as explained above; however Liu fails to explicitly disclose the thickness of the tabular shape is smaller than 1/4 of a width of the tabular shape.
However, it would have been obvious to a person of ordinary skill in the art before the filing date of the claimed invention to modify the size of the thickness of the tabular shape to be smaller than ¼ of the width of the tabular shape as claimed as an engineering design choice. A change in size or proportion is generally recognized as being within the level of one of ordinary skill in the art absent evidence that the change in size results in a difference in performance. See MPEP § 2144.04 IV A.
Regarding Claim 14, Liu discloses flat metal electrode plates 202 contacting opposite surfaces of ceramic heat generator 201 (paragraph [0052], and FIG 6). However, Liu additionally teaches shaped electrode rib portions that embrace the ceramic and maintain close contact through a clamping arrangement (see FIG 4 and [0044]-[0046]).
It would have been obvious to a person of ordinary skill in the art to modify the flat metal electrode plates 202 of Liu FIG 6 and apply the mechanical retention teachings of Liu as shown in 202 of FIG 4 to the flat plate embodiment of FIG 6, which teaches a retaining rib extending from the plates principle face portion and back and around the heater 201. This modification would provide the benefit of restraining relative movement between the plate 202 and the ceramic 201.
Regarding Claim 16, Liu discloses metal electrode plates 202 contacting opposite surfaces of heat generator 201 which has an angularly projecting leading end [0047] and FIG 6. Liu does not explicitly disclose a leading-end rib formed by bending a plate edge along that end. However, Liu teaches shaped electrode plates that embrace the ceramic to maintain close mechanical and electrical contact [0040]-[0042], see also FIG 3-4. It would have been obvious to a person of ordinary skill in the art to modify the plate of Liu and extend and bend the leading edge of at least one flat electrode plate forming a rib around the corresponding angular ceramic edge to mechanically retain the plate against displacement during substrate insertion. The bent portion would follow the resistive heat generators leading end contour while remaining electrically separated from the opposite plate.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Liu (CN 209807157 U), submitted by Applicant via IDS filed 4-19-2024, English machine translation relied upon and in view of Golan (US 6852955B1)
Regarding Claim 17, Liu teaches the claim limitations as set forth above, and teaches the resistive heat generator can have printed electrode sheets printed on the front and back sides of the PTC substrate using a paste printing process [0019]-[0020], however Liu fails to explicitly disclose the resistive heat generator and the metal plates are adhered together by using a conductive adhesive paste.
Golan teaches a PTCR heat generator body can be adhered to the heat generator body by using a conductive adhesive paste (see column 3 lines 40-50, column 4 lines 1-2, metalized adhesive that is specifically aluminized, see also column 5 lines 63-67, preparation of adhesive composition, … aluminum powder, thourouly mixed until homogenous for use in adhering electrodes to PTC heating element (see column 6 lines 7-21) and teaches this composition is useful because tests allowed 10,000 hours of usage with this aluminum powder adhesive without failure, and a life expectancy exceeding 30,000 hours.
It would have been obvious to a person of ordinary skill in the art before the filing date of the claimed invention to modify Liu’s heater by bonding metal electrode plates 202 to PTC ceramic heat generator 201 using the aluminized conductive adhesive paste composition of Golan in order have heating life expectancy of the modified device of Liu exceeding 30,000 hours.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Liu (CN 209807157 U), submitted by Applicant via IDS filed 4-19-2024, English machine translation relied upon and in view of Alston (US 20200077707A1).
Regarding Claim 20, Liu discloses the PTC heat generator 201 as set forth above with plates 202, additionally Liu teaches that heated tobacco products (such as the one taught by Liu) operate at a temperature of between 220 and 250 °C, however its unclear if Liu is specifically referring to the operating ranges for the invention that follows the background.
Alston teaches a vaporizer with a PCT heat generator and teaches the heater surface reaches a suitable operating temperature of 250 °C. [0106]-[0107], and teaches intrinsic temperature control as provided by the PCT heat generator of Alston avoids overheating or burning the vaporizable material and formation of unwanted chemical byproducts [0098].
It would have been obvious to a person of ordinary skill in the art before the filing date of the claimed invention to configure Liu’s PTC heat generator 201 to self regulate at about 250 °C, as taught by Alston [0107] to avoid overheating and producing unwanted chemical byproducts [0098].
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael T Fulton whose telephone number is (703)756-1998. The examiner can normally be reached Monday-Friday 7:00 - 4:30 ET.
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/M.T.F./Examiner, Art Unit 1747
/RUSSELL E SPARKS/Primary Examiner, Art Unit 1755
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