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 .
Response to Amendment
Claim 1 is amended. Claim 12 is cancelled. Claims 1-11 are presently examined.
Applicant’s arguments regarding the objection to the drawings have been fully considered and are persuasive. The objection of 6/18/2026 are withdrawn.
Applicant’s arguments regarding the objection to the specification have been fully considered and are persuasive. The objection of 6/18/2026 are withdrawn.
Claim Interpretation
Regarding claim 1, the claim recites the limitation “a first heater… configured to heat an aerosol generating substance,” which is considered to be a limitation regarding the intended use of the claimed first heater. 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. Therefore, for the purposes of this Office action, the limitation will be interpreted as if it required a heater that could heat an aerosol generating substrate.
The claim recites the limitation “a stick inserted into the insertion space, the portion of the stick not containing a medium” which is considered to be a limitation regarding the intended use of the claimed space. 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. Therefore, for the purposes of this Office action, the limitation will be interpreted as if it required a space that could accommodate a cigarette.
Regarding claim 3, the claim recites the limitation “the second heater is positioned at a location that is adjacent to a location at which a support portion of the stick is located, when the stick has been inserted into the insertion space,” which is considered to be a limitation regarding the intended use of the claimed device since the stick need not be inserted for the device to exist. 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. Therefore, for the purposes of this Office action, the limitation will be interpreted as if it required the second heater to be positioned adjacent to the insertion space.
Regarding claim 4, the claim recites the limitations “wherein the stick comprises: a medium portion; and the support portion connected to an upstream end and/or a downstream end of the medium portion,” which are directed to the stick, which is not part of the claimed 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. Therefore, for the purposes of this Office action, the limitation will be interpreted as if it required a device that could accommodate the claimed stick.
The claim recites the limitation “wherein the second heater is configured to heat an outer circumferential surface of the support portion while the stick is inserted into the insertion space,” which is a statement regarding the intended use of the claimed second heater. 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. Therefore, for the purposes of this Office action, the limitation will be interpreted as if it required a heater that could heat a stick in the claimed manner.
Regarding claim 6, the claim recites the limitation “wherein the color signal is received during a time period between the determining of the stick being inserted into the insertion space and the receiving puff signal,” which is considered to be a statement regarding the intended use of the claimed puff sensor and color sensor. 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. Therefore, for the purposes of this Office action, the limitation will be interpreted as if it required a puff sensor that could be used after the color sensor.
Regarding claim 8, the claim recites the limitation “after the stick has been inserted into the insertion space,” which is considered to be a limitation regarding the intended use of the claimed controller and puff sensor. 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. Therefore, for the purposes of this Office action, the limitation will be interpreted as if it required a controller and puff sensor that could function after a stick has been inserted.
Regarding claim 9, the claim recites the limitation “wherein a color of an outer circumferential surface of a support portion of the stick is changed in proportion to a time of being heated by the second heater,” which is considered to be a limitation regarding the stick that is used with the claimed 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. Therefore, for the purposes of this Office action, the limitation will be interpreted as if it required a device that could be used with a stick having the claimed features.
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 11 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 11, it is unclear what is required by the limitation “the second heater is heated at a temperature lower than a vaporization temperature of the aerosol generating substrate” since there is no requirement in claim 1 that the aerosol generating substrate be actually present. For the purposes of this Office action, the limitation will be interpreted as if it did not require the actual presence of an aerosol generating substrate.
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 1 and 3-4 are are rejected under 35 U.S.C. 103 as being unpatentable over Krietzman (US 10,076,137) in view of Chen (US 10,165,797) and Kulkarni (US 2023/0240353).
Regarding claim 1, Krietzman discloses a system to vaporizer extract using a disposable cartridge (abstract, figure 2, reference numeral 1) that is inserted into a receiver (figure 3, reference numeral 23), which is considered to meet the claim limitation of an inlet, that opens into a cartridge guide (figure 3, reference numeral 24) that has heaters on its outside (figure 3, reference numeral 20), which is considered to meet the claim limitation of a second heater, located in an elongate case (column 6, lines 32-45, figure 3, reference numeral 22), which is considered to meet the claim limitation of a housing defining an insertion space. The cartridge partially extends outside of the receiver (column 6, lines 46-50). The heaters extend adjacent to an end of the cartridge that is opposite the receiver (figure 3), which is considered to meet the claim limitation of a first heater disposed adjacent to one end of the insertion space. The case also contains a controller that connects to a cartridge identification reader that determines whether a color change region that functions as both a heat indicator that indicates that the cartridge has been previously heated and prevents heating if so and an identification reader that verifies a cartridge ID (column 6, lines 51-67, column 7, lines 1-17). It is evident that the heater could heat a portion of the cartridge that does not contain a medium since the heater releases heat in the general direction of the cartridge. Krietzman does not explicitly disclose (a) a first heater and (b) the color sensor being located between the heater and the receiver.
Regarding (a), Chen teaches a cigarette distillation and atomization device (abstract) having an elongate body (column 3, lines 41-43, figure 2, reference numeral 12). A first heating system heats air that enters the device to form a hot air flow (column 4, lines 28-43) having an air flow channel that guides air from the first heating system to the accommodation area (column 4, lines 51-62, figure 2). The first heating system is located near the accommodation space (figure 2), which is considered to meet the claim limitation of adjacent since applicant also describes spaced components as being adjacent ([173], figure 8, reference numeral 131). The accommodation portion is provided in the second heating system that heats a cigarette provided in the accommodation portion (column 4, lines 28-43). Chen additionally teaches that this design allows a cigarette to be atomized by an airflow of medium temperature to prevent the formation of harmful substances and eliminate ash production (column 3, lines 25-38).
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Krietzman with the first heating system and associated air flow of Chen. One would have been motivated to do so since Chen teaches that providing a first heating system allows a cigarette to be atomized by an airflow of medium temperature to prevent the formation of harmful substances and eliminate ash production.
Regarding (b), Kulkarni teaches a consumable for an aerosol generation device having codes with stored information on its wrapper (abstract) that is inserted into an aerosol generation device having a detector [0049] that reads the codes using a camera [0053]. The detector is arranged about between the heating chamber and an opening of the housing through which the consumable is inserted [0053] so that more or longer patterns can be read when the consumable is inserted [0033].
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the consumable and device of Krietzman with the positioning of Kulkarni. One would have been motivated to do so since Kulkarni teaches locations that enable more or longer patterns to be read on the consumable.
Regarding claim 3, Krietzman teaches that the heater is located adjacent to the location where the cartridge is located when inserted (figure 3). It is evident that a support portion of the cartridge could be located there since such a support portion would be within the cartridge.
Regarding claim 4, it is evident that the heater of Krietzman could heat a stick having the claimed features if such a stick were inserted into the receiver since the heater surrounds the accommodation space.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Krietzman (US 10,076,137) in view of Chen (US 10,165,797) and Kulkarni (US 2023/0240353) as applied to claim 1 above, and further in view of Moloney (US 2021/0022404).
Regarding claim 2, modified Krietzman teaches all the claim limitations as set forth above. Modified Krietzman does not explicitly teach the heater having an annular shape.
Moloney teaches an aerosol provision system including an aerosol generating article (abstract) having a receptacle that is surrounded by an annular heater so that the article is provided in close proximity to the heater to improve heat transfer efficiency [0034].
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the heater and receiver of modified Krietzman with the shape of Moloney. One would have been motivated to do so since Moloney teaches a heater shape that improves heat transfer efficiency.
Claims 5 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Krietzman (US 10,076,137) in view of Chen (US 10,165,797) and Kulkarni (US 2023/0240353) as applied to claim 1 above, and further in view of Bruna (US 2023/0042197).
Regarding claim 5, modified Krietzman teaches all the claim limitations as forth above. Modified Krietzman does not explicitly teach the color sensor emitting light and receiving a reflected color signal.
Bruna teaches an aerosol generating consumable comprising an indicum on the side of the consumable that is read by an optical reader system within an aerosol generating device to recognize the consumable article (abstract) in which a light source illuminates the indicum [0062]. The indicum has different colors that are read by the detector [0093]. The indicum reflects the light to form light beams [0062] that is then received by a detector system [0086].
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the device of modified Krietzman with the detection system of Bruna. One would have been motivated to do so since Bruna teaches a detector that reads color information from an aerosol generating consumable.
Regarding claim 10, Krietzman disclsoes a system to vaporizer extract using a disposable cartridge (abstract, figure 2, reference numeral 1) that is inserted into a receiver (figure 3, reference numeral 23) of a heater (figure 3, reference numeral 20) located in a case (column 6, lines 32-45, figure 3, reference numeral 22). The case also contains a controller that connects to a cartridge identification reader that determines whether a color change region that functions as heat indicator indicates that the cartridge has been previously heated and prevents heating if so (column 6, lines 51-67, column 7, lines 1-17). The cartridge is heated if the detection indicates that the cartridge has not previously been heated (column 15, lines 28-59).
Claims 6 and 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Krietzman (US 10,076,137) in view of Chen (US 10,165,797) and Kulkarni (US 2023/0240353) and Bruna (US 2023/0042197) as applied to claim 5 above, and further in view of Rostami (US 10,010,111).
Regarding claim 6, modified Krietzman teaches all the claim limitations as set forth above. Krietzman additionally discloses that the controller recognizes that the cartridge is inserted into the device through an actuator that causes the controller to begin functioning, including to determine whether cartridge has previously been used, when the cartridge is inserted (column 6, lines 51-67, column 7, lines 1-17), which evidently could occur before a user inhales on the device. Modified Krietzman does not explicitly teach a puff sensor.
Rostami teaches an e-vaping device (abstract) having a puff sensor that senses movement of air within the device caused by a user’s inhalation and automatically starts a heater to generate vapor that reaches a user’s mouth (column 4, lines 51-67, column 5, lines 1-3).
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the device of modified Krietzman with the puff sensor of Rostami. One would have been motivated to do so since Rostami teaches a puff sensor that leads to automatic activation of heater when a user inhales on the device.
Regarding claim 8, modified Krietzman teaches all the claim limitations as set forth above. Modified Krietzman does not explicitly teach a puff sensor.
Rostami teaches an e-vaping device (abstract) having a puff sensor that senses movement of air within the device caused by a user’s inhalation and automatically starts a heater to generate vapor that reaches a user’s mouth (column 4, lines 51-67, column 5, lines 1-3). It is evident that this could occur after a stick has been inserted into the device since Rostami does not limit when the puff sensor can do its detecting.
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the device of modified Krietzman with the puff sensor of Rostami. One would have been motivated to do so since Rostami teaches a puff sensor that leads to automatic activation of heater when a user inhales on the device.
Regarding claim 9, it is evident that the device of modified Krietzman could function with a stick where the surface changes based on a heating time. Krietzman teaches that the controller connects to a cartridge identification reader that determines whether a color change region that functions as heat indicator indicates that the cartridge has been previously heated and prevents heating if so (column 6, lines 51-67, column 7, lines 1-17), which is considered to meet the claim limitation of an extent of use.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Krietzman (US 10,076,137) in view of Chen (US 10,165,797) and Kulkarni (US 2023/0240353) and Bruna (US 2023/0042197) as applied to claim 5 above, and further in view of Cho (WO 2021/060716, English language equivalent US 2022/0125124 relied upon).
Regarding claim 7, modified Krietzman teaches all the claim limitations as set forth above. Modified Krietzman does not explicitly teach controlling the heater based on the number of puffs counted by a puff sensor.
Cho teaches an aerosol generating device (abstract) having a controller that stops supplying power to a heater when the number of puffs counted by a puff detecting sensor reaches a maximum number of puffs [0079].
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the device of modified Krietzman with the puff detecting and counting of Cho. One would have been motivated to do so since Cho teaches a limit for the number of puffs from an aerosol generating device.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Krietzman (US 10,076,137) in view of Chen (US 10,165,797) and Kulkarni (US 2023/0240353) and Bruna (US 2023/0042197) as applied to claim 5 above, and further in view of Propylene Glycol (already of record).
Regarding claim 11, modified Krietzman teaches all the claim limitations as set forth above. Chen additionally teaches that second cylinder is heated to a temperature of between 185 °C-230 °C (column 7, lines 34-47). Modified Krietzman does not explicitly teach (a) the boiling point of propylene glycol being 187 °C and (b) the heating temperature of the second cylinder being less than 187 °C.
Regarding (a), Propylene Glycol teaches that propylene glycol, which is considered to meet the claim limitation of an aerosol generating substance, has a boiling point of 187 °C (section 9).
Regarding (b), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to operate the second cylinder at a temperature of less than 187 °C. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Response to Arguments
Regarding the rejections under 35 USC 112(b), applicant’s arguments have been fully considered but they are not persuasive since claim 11 is not amended in the amendment of 9/9/2026.
Regarding the rejections under 35 USC 103, applicant’s arguments have been fully considered but they are not persuasive. Applicant argues (a) that Krietzman does not teach a color sensor, (b) that the cited references do not teach a specific location of the color sensor, and (c) that the dependent claims are allowable due to dependence on an allowable claim.
Regarding (a), Krietzman does disclose a color sensor. Krietzman explicitly states that the heat indicator is, in one embodiment, a color change region. This means that, in order to determine whether the region is previously heated, Krietzman must determine the current color of the color change region. Krietzman therefore implicitly discloses a color sensor, even though Krietzman may not explicitly state that the optical reader detects color.
Regarding (b), applicant’s arguments do not address the teachings of Kulkarni as set forth above.
Regarding (c), all claims, including the independent claim, are rejected as set forth above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/RUSSELL E SPARKS/ Primary Examiner, Art Unit 1755
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