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 .
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.
Claim Rejections - 35 USC § 112
Claims 6-7 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.
Regarding claim 6, the term “close” is a relative term which renders the claim indefinite. The term “close” 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. For example, the relative term “close” as recited in the phrase “wherein convex side end portions of the corners of the sides, close to each other,” is unclear and the claim language fails to provide guidance as to the scope of the limitation such that the skilled artisan may not know how to avoid infringing on the claimed invention, because the metes and bounds of what is considered by the term “close” are not clearly defined by the claim. Thus, for the purposes of compact prosecution, the claims are examined with “close” being given its broadest reasonable interpreted as being within the same device or in proximity.
Claim 7 is indefinite by dependence.
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 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Blackmon et al. (US 20220225685 A1).
Regarding claim 1, Blackmon discloses an aerosol-generating device 10 configured to receive and heat an aerosol-forming substrate (anticipates a substrate), which may be contained within a capsule 100, to produce an aerosol (Fig. 1, [0061]).
The aerosol-forming substrate 160a, 160b may be heated by a heater 336 (anticipates a heating element) to generate an aerosol (Fig. 2, [0071]).
The aerosol-forming substrate and heater anticipate an atomization core of claim 1.
The heater 336 is in thermal contact with the aerosol-forming substrate (anticipates heating element contact with the substrate) ([0073]).
The heater 336 is produced from a SS316L sheet material wherein the sheet material may be formed of one or more conductors (anticipates SS316L heating wires) ([0087]), wherein the heater 336 has an intermediate section 144, a first end section 142, and a second end section 146 configured to receive an electric current from a power supply (Annotated Fig. 2B shown below, [0088]).
In annotated Fig. 2B, the first and second end sections 142, 146 are shown spaced apart from each other (anticipates arranged at an interval). The conductors are shown bent outward to form the first and second end sections 142, 146 (anticipating SS316L wires bent and extend to be connected limitation) (Annotated Fig. 2B).
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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 3-6 are rejected under 35 U.S.C. 103 as being unpatentable over Blackmon et al. (US 20220225685 A1) as applied to claim 1 above.
Regarding claim 3, Blackmon discloses the conductors are configured to undergo Joule heating (which is also known as ohmic/resistive heating) and the heater 336 may have a resistance of between 0.5-2.5 ohms ([0087]), which overlaps the claimed range of 0.206 Ω to 0.825 Ω. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness. See MPEP § 2144.05.I. This reads over claim 3.
Regarding claim 4, Blackmon discloses the heater sheet material may have a thickness of about 0.1 - 0.3 mm ([0087]), which overlaps the claimed range of 0.08 mm to 0.1 mm. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness. See MPEP § 2144.05.I.
Regarding the claimed heating wire width, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select a conductor width that when combined with Blackmon’s sheet material thickness results in a conductor cross-sectional area necessary to obtain Blackmon’s heater resistivity values consistent with the resistivity formula derived from Ohm’s law (Formula 2, as discussed in Applicant’s as filed specification paragraphs [0053-0054]). Discovering workable or optimum ranges by routine experimentation is considered within the ordinary skill in the art when the general conditions are disclosed (see MPEP § 2144.05(A)). This reads over claim 4.
Regarding claim 5, Blackmon doesn’t explicitly disclose a length of a single SS316L conductor, however it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the prior art to correspond with that of the claimed invention since it has been held that mere scaling up or down of a prior art element capable of being scaled up or down would not establish patentability in a claim to an element, In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976).
Regarding claim 6, Blackmon discloses SS316L conductors as discussed in the rejection of claim 1 above and further discloses at least two conductors arranged side-by-side as shown in Fig. 2B.
The convex shape of the side end portions of the corners of the sides is not positively recited and therefore, Blackmon still properly reads over claim 6.
Allowable Subject Matter
Claims 2 and 7-10 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 2, Blackmon does not disclose or reasonably suggest the claimed contact area between the SS316L conductors and the substrate.
Regarding claim 7, Blackmon does not disclose or reasonably suggest the claimed reinforcing portions structure.
Regarding claim 8, Blackmon discloses aerosol-generating device 10 includes a front housing 1202, a rear housing 1204, and a bottom housing 1206, an aerosol outlet 1102 (Fig. 1B, [0061]). The first and second aerosol-forming substrate 160a, 160b may be in a consolidated form (e.g., sheet, pallet, tablet) that is configured to maintain its shape so as to allow the first and second substrate 160a, 160b to be placed in a unified manner within the first recess 114 of the first cover 110 and the second recess of the second cover 120 ([0075]). The heater 336 faces one side of substrate 160a and one side of substrate 160b (Fig. 2B), faces the aerosol outlet channel 1102 (Fig. 2F), and heats the substrate 160a, 160b ([0071]).
Blackmon does not disclose or reasonably suggest the claimed liquid storage cavity configured to store the aerosol generation substrate. Claims 9-10 are objected to due to dependency.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RONNIE KIRBY JORDAN whose telephone number is 571-272-5214. The examiner can normally be reached M-F 8AM - 4PM (EST).
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/RONNIE KIRBY JORDAN/Examiner, Art Unit 1747
/Christopher M Rodd/Primary Examiner, Art Unit 1766
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