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 .
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 9 and 10 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 9 recites the limitation "the periphery" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the periphery" in line 2. There is insufficient antecedent basis for this limitation in the claim.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-3, 5, 6, 9, 11, 14, 16, 17, 19 and 20 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by SAYGILI (US 2023/0346019).
With respect to claim 1, SAYGILI discloses a cartridge for an aerosol generating device (Abstract). The cartridge comprises a heater element, 32, (“aerosol generating component”) (Paragraphs [0185]-[0187]; Figures 1B-3) comprising at least one apertures or slots (“aperture”) through the heater sheet that comprise a spiral, a zig-zag pattern or a grid pattern (Paragraph [0019], [0185], [0186]) that are elongated (Figure 3).
With respect to claim 2, SAYGILI discloses that the apertures are spiral 9paragraph [0186]; Figure 3). Thus, the aperture at one end will necessarily increase in curvature compared to the other end.
With respect to claim 3, SAYGILI shows that the aperture is curved along at least part of its length (Figure 3).
With respect to claim 5, SAYGILI discloses that the aerosol generating component is planar (Paragraph [0010]).
With respect to claim 6, SAYGILI shows that the aperture comprises a curved portion connected to a straight portion (annotated figure 3, below).
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With respect to claim 9, SAYGILI shows that the aperture is open at the periphery of the aerosol generating component (Figure 2A, annotated below).
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With respect to claim 11, SAYGILI discloses an aerosolizable material feed section, 33, (Paragraphs [0195]-[0196]; Figures 1A-2B) and an aerosolization section (at 36) (Paragraphs [0195]-[0197]).
With respect to claim 14, SAYGILI discloses that the aerosol generating component comprises two electrical contacts (“connectors”), 15 and 17 (Paragraph [0187]).
With respect to claim 16, SAYGILI discloses that the aerosol generating component is electrically conductive (Paragraphs [0020]-[0023]).
With respect to claim 17, SAYGILI discloses that the aerosol generating component is formed of a single layer (Paragraph [0062]).
With respect to claim 19¸ SAYGILI discloses a device (“article”) (Abstract) comprising the aerosol generating component of claim 1 (See rejection of claim 1) and a reservoir, 30, for aerosolizable substrate (“aerosolizable material” (Paragraph [0185]).
With respect to claim 20¸ SAYGILI discloses the article of claim 19 (see rejection of claim 19) and a device comprising a power source, 12, (Paragraph [0187]) and a controller (Paragraph [0057], [0187]; item 14).
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.
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.
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Claim(s) 7, 12, 13 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over SAYGILI (US 2023/0346019).
With respect to claim 7¸while SAYGILI doesn’t explicitly disclose that the aperture comprises a slot and slit portion that are connected, it would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to designate the straight portion of the aperture as the slit and the curved portion of the aperture as the slot, so that different parts of the aperture can be individually identified.
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It is noted that claim 7 does not identify any structural differences between the claimed “slot” and “slit”. Merriam-Webster defines “slot” as a narrow opening or groove; slit, notch. Thus, a slit and slot appear to overlap in scope.
With respect to claims 12 and 13, while SAYGILI doesn’t explicitly disclose that the aperture comprises a slot and slit portion that are connected, it would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to designate the straight portion of the aperture as the slit and the curved portion of the aperture as the slot, so that different parts of the aperture can be individually identified.
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It is noted that claim 7 does not identify any structural differences between the claimed “slot” and “slit”. Merriam-Webster defines “slot” as a narrow opening or groove; slit, notch. Thus, a slit and slot appear to overlap in scope.
SAYGILI discloses an aerosolizable material feed section, 33, (Paragraphs [0195]-[0196]; Figures 1A-2B) and an aerosolization section (at 36) (Paragraphs [0195]-[0197]). As seen in figure 1A, the aerosolizing section and the material feed section exists at an interface between 33 and 32/36. Thus, each of the slot and slit is located in each section.
With respect to claim 18¸ SAYGILI discloses that the aerosol generating component is formed of a mesh structure, array structure or pattern of electrically conductive filaments (Paragraph [0021]).
While SAYGILI does not explicitly disclose combining the mesh heating structure with the spiral aperture heating structure, the courts have generally held that combining known equivalents for the same purpose is prima facie obvious. See, In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) . MPEP 2144.06. Thus, it would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide a mesh heating structure, along with spiral apertures in SAYGILI so that the fluid can permeate the entire heating structure.
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Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over SAYGILI (US 2023/0346019) in view of RINKER et al. (US 2014/0305454).
With respect to claim 4, SAYGILI does not explicitly disclose that the aperture is curved along substantially its entire length.
RINKER et al. discloses a permeable heater for a vaporizer device (Abstract; Title). The heater includes a spiral aperture that is curved along substantially its entire length (Figure 1) and allows the liquid to flow through the aperture (e.g., interspaces) (Abstract; Paragraphs [0031]-[0035]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide the aperture of SAYGILI as curve along substantially its entire length, as taught by RINKER et al. so that the fluid can permeate the heater.
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Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over SAYGILI (US 2023/0346019) in view of GARTHAFFNER et al. (US 2019/0001086).
With respect to claim 8, SAYGILI does not explicitly disclose the claimed sizes. GARTHAFFNER et al. discloses an electronic vaping device (Abstract). The heater comprises a spiral channel,310, having a width ranging from between 0.1mm to about 0.5 mm (Paragraph [0093]) and allows that vapor to exit the heater (Paragraph [00080]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide a width of the aperture in SAYGILI of 0.3 mm, as is within the range disclosed by GARTHAFFNER et al., so that the vapor can pass through the heater.
It is noted that the claim requires a width of the slit of up to 0.3 mm while the slot is greater than 0.3 mm. The difference between this range is infinitesimally small (e.g., 0.3 mm to 0.3001 mm). The courts have generally held that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). MPEP 2144.05, I. In the instant case, the differences are so small that any difference in properties between them would be immeasurable.
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Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over SAYGILI (US 2023/0346019) in view of SEARS et al. (US 2016/0262454)
With respect to claim 10¸ SAYGILI does not explicitly disclose that the aperture is enclosed by the periphery.
SEARS et al. discloses that the capillary channel is enclosed within the periphery of the heater (Paragraph [0108]; Figure 9) such that the liquid can be distributed through the heater. It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to provide the aperture of SAYGILI enclosed by the periphery of the heater, as taught by SEARS et al. so that the fluid can be distributed through the heater.
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Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over SAYGILI (US 2023/0346019) in view of FRASER et al. (US 2018/0192700).
With respect to claim 15, SAYGILI does not explicitly disclose that the heater is porous. FRASER et al. discloses that the heater element is porous and can also act as a wick (Paragraph [0045]). It would have been obvious to one having ordinary skill in the art, prior to the effective filing date of the claimed invention, to use a porous heater element in SAYGILI, as taught ty b FRASER et al. so that the heater can also transport the liquid throughout itself.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEX B EFTA whose telephone number is (313)446-6548. The examiner can normally be reached 8AM-5PM EST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Tucker can be reached at 571-272-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALEX B EFTA/Primary Examiner, Art Unit 1745
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