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 because the abbreviation “FIG.” is not used despite the presence of multiple views as required by 37 CFR 1.84(u)(1). It is noted that multiple versions of the drawings are present, and that it cannot be determined which version is authoritative. 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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
Specification
The disclosure is objected to because of the following informalities: There are paragraphs numbers for paragraphs [25], [83], [108], [166], [189], [204], and [216], however, there are no corresponding paragraphs. Correction is required to eliminate paragraph numbers associated with nonexistent paragraphs. It is noted that multiple versions of the specification were filed on the same day, making it unclear as to which version is authoritative, and that it is recommended for the specification to feature paragraph numbers enclosed in brackets and containing at least four digits using leading zeros if required. See 37 CFR 1.52(b)(6). Appropriate correction is required.
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,” 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.
Claims 1-12 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 1, the claim recites the limitation “wherein the color sensor is disposed relative to an upper side of the second heater and along the longitudinal direction of the insertion space.” It is unclear what structure relationship is required by the limitation “relative to,” rendering the claim indefinite. For the purposes of this Office action, the limitation will not be considered to limit the claim. Claims 2-12 are indefinite by dependence.
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.
Regarding claim 12, the claim recites the limitation “the second heater is positioned at a height relative to a lower end of the insertion space and which generally corresponds with a location at which a support portion of the stick is located, when the stick has been inserted into the insertion space.” It is unclear what position, if any, is required by this limitation since the language used is vague and there is no specific information as to what positions are “relative to” or “corresponding” to another. Any position could be considered to relative to corresponding to another position. The claim is therefore indefinite. For the purposes of this Office action, the claim will not be considered to further limit the claim upon which it depends.
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 1-4 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (US 10,165,797) in view of Krietzman (US 10,076,137).
Regarding claims 1 and 12, Chen discloses a cigarette distillation and atomization device (abstract) having an elongate body (column 3, lines 41-43, figure 1), which is considered to meet the claim limitation of a housing. The device contains a cigarette accommodation area within it (figure 2, reference numeral 12), which is considered to meet the claim limitation of an insertion space. 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, reference numeral 33), which is considered to meet the claim limitation of a first heater. It is evident that this heater could heat an aerosol generating substrate since heated air is passed to the accommodation area. 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), which evidently also includes an outer surface of the cigarette. The second heating system is therefore considered to meet the claim limitation of a second heater. Chen does not explicitly disclose a color sensor.
Krietzman teaches 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). It is evident that the reader must be located in the receiver adjacent to the cartridge since it would otherwise not have a line of sight to the color change region.
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 Chen with the reader, controller, and controller operation of Krietzman. One would have been motivated to do so since Krietzman teaches a controller that shuts down an electronic vaporizer heater if an inserted cigarette has already been used.
Regarding claim 2, Chen discloses that second system is provided with a second cylinder that defines the cigarette accommodating area (column 5, lines 24-32, figure 2, reference numeral 12) and that the second cylinder is made from a metal ceramics heater (column 3, lines 18-20), indicating that the second cylinder forms an annular second heater that surrounds the insertion space.
Regarding claim 3, Chen discloses that second system is provided with a second cylinder that defines the cigarette accommodating area (column 5, lines 24-32, figure 2, reference numeral 12) and that the second cylinder is made from a metal ceramics heater (column 3, lines 18-20), indicating that the second heating system as adjacent to the accommodation space.
Regarding claim 4, it is evident that the second heating system of Chen could heat a stick having the claimed features if such a stick were inserted into the accommodation space since the heater surrounds the accommodation space.
Claims 5 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (US 10,165,797) in view of Krietzman (US 10,076,137) as applied to claim 1 above, and further in view of Bruna (US 2023/0042197).
Regarding claim 5, modified Chen teaches all the claim limitations as forth above. Modified Chen 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 Chen 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 teaches 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 Chen (US 10,165,797) in view of Krietzman (US 10,076,137) 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 Chen teaches all the claim limitations as set forth above. Kreitzman additionally teaches 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 Chen 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 Chen 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 Chen teaches all the claim limitations as set forth above. Modified Chen 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 Chen 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 Chen could function with a stick where the surface changes based on a heating time. Kreitzman 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 Chen (US 10,165,797) in view of Krietzman (US 10,076,137) 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 Chen teaches all the claim limitations as set forth above. Modified Chen 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 Chen 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 Chen (US 10,165,797) in view of Krietzman (US 10,076,137) and Bruna (US 2023/0042197) as applied to claim 5 above, and further in view of Propylene Glycol (Propylene Glycol, PPG, https://cameochemicals.noaa.gov/chris/PPG.pdf).
Regarding claim 11, modified Chen teaches all the claim limitations as set forth above. Chen additionally discloses that second cylinder is heated to a temperature of between 185 °C-230 °C. Modified Chen 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).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUSSELL E SPARKS whose telephone number is (571)270-1426. The examiner can normally be reached Monday-Friday, 9:00 am-5 pm.
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/RUSSELL E SPARKS/ Primary Examiner, Art Unit 1755
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