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 § 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.
Claims 1-12 and 14-21 are rejected under 35 U.S.C. 103 as being upatentable over Lord (US 2022/0071289).
Regarding claim 1, Lord discloses an aerosol delivery device comprising an aerosol generation apparatus (abstract). The device has a first casing ([0242], figure 17, reference numeral 300), which is considered to meet the claim limitation of a housing, that defines a reservoir within it that contains aerosol precursor ([0244], figure 17, reference numeral 300) that contains nicotine [0191]. A wick is defined within the housing, and is considered to be within a chamber since the space occupied by the wick is within the housing ([0244], figure 17, reference numeral 111). A heater heats liquid in the wick ([0244], figure 15, reference numeral 112), and therefore must be in heating proximity. The lower portion of the reservoir is defined by a flange (figure 17, reference numeral 602) having bores through it that allow aerosol precursor to pass through the bores and reach the wick ([0244], figure 17, reference numeral 122), which are considered to meet the claim limitation of at least one first channel. The bores are parallel to an additional bore that is sufficiently small to prevent aerosol precursor from passing through it ([0245], figure 17, reference numeral 604) but allows the passage of air into the reservoir [0249], and is therefore considered to meet the claim limitation of at least one first air passage. The air moves up into the reservoir while the precursor moves down from the reservoir as indicated by arrows (figure 17). Lord does not explicitly disclose the different parts being manufactured in the claimed order.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the claimed parts in the claimed order. In general, the transposition of process steps or the splitting of one step into two, where the processes are substantially identical or equivalent in terms of function, manner and result, was held to not patentably distinguish the processes. See MPEP § 2144.04 (IV)(C).
Regarding claim 2, Lord discloses that the bores and additional bore are parallel to each other (figure 17).
Regarding claim 3, Lord discloses that the bores and additional bore are parallel to each other but transport fluids in opposite directions (figure 17).
Regarding claim 4, Lord discloses that the single additional bore has a diameter of 0.32 to 0.4 mm [0245] and that the two capillary bores have a diameter of 0.8 to 1.5 mm ([0247], figure 17). It is therefore evident that the total cross sectional area of the two capillary bores exceeds that of the single additional bore.
Regarding claim 5, modified Lord teaches all the claim limitations as set forth above. Lord additionally discloses that Lord discloses that the single additional bore has a diameter of 0.32 to 0.4 mm [0245] and that the two capillary bores have a diameter of 0.8 to 1.5 mm ([0247], figure 17), which are equivalent to total areas of 0.08042 mm2 to 0.12566 mm2 and 1.0054 mm2 to 3.534 mm2, respectively. Modified Lord does not explicitly teach (a) the cross sectional area of the single additional bore being within the claimed range and (b) the cross sectional area of the two capillary bores falling within the claimed range.
Regarding (a), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the cross sectional area of the single additional bore fall within the claimed range. 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).
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 make the cross sectional area of the tow capillary bores bore fall within the claimed range. 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).
Regarding claim 6, modified Lord teaches all the claim limitations as set forth above. Lord additionally discloses that the single additional bore has a diameter of 0.32 to 0.4 mm [0245] and that the two capillary bores have a diameter of 0.8 to 1.5 mm ([0247], figure 17), which are equivalent to total areas of 0.08042 mm2 to 0.12566 mm2 and 1.0054 mm2 to 3.534 mm2, respectively. The ratio of the area of the two capillary bores to the area of the single additional therefore can vary between about 8:1 and about 44:1. Modified Lord does not explicitly teach the ratio falling within the claimed range.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the ratio fall within the claimed range. 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).
Regarding claim 7, modified Lord teaches all the claim limitations as set forth above. Lord additionally discloses that the single additional bore has a diameter of 0.32 to 0.4 mm [0245], which is equivalent to a total area of 0.08042 mm2 to 0.12566 mm2. Lord does not explicitly disclose the claimed range being obvious.
However, one of ordinary skill in the art before the effective filing date of the claimed invention would recognize that the claimed range is obvious. 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).
Regarding claim 8, Lord discloses that the wick is outside both the reservoir and the capillary bores (figure 17).
Regarding claim 9, Lord discloses that two first capillary channels are present (figure 17).
Regarding claim 10, Lord discloses that air reaches the wick, and therefore the chamber containing the wick, through a passage ([0250], figure 17, reference numeral 126), which is considered to meet the claim limitation of a first air vent.
Regarding claim 11, modified Lord teaches all the claim limitations as set forth above. Modified Lord does not explicitly teach an orientation of the heater relative to the passage.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to arrange the heater in the claimed orientation relative to the passage. Rearrangement of parts where both arrangements are known equivalents is a design choice that gives predicable results. See MPEP § 2144.04 VI C.
Regarding claim 12, the vertical direction is considered to meet the claim limitation of a first direction.
Regarding claim 14, Lord discloses that the air is supplied to the device through an air inlet of the device [0054]. The air inlet is located in a second housing [0061] having the heater [0058], which is considered to meet the claim limitation of a power section. The first housing has the reservoir and mouthpiece [0058], and is therefore considered to meet the claim limitation of a nicotine e-vaping section. The device functions when two housings are combined [0059].
Regarding claim 15, Lord discloses that the passageway conveys a mixture of air together with aerosol generated by the heater to a user [0220].
Regarding claim 16, Lord discloses that the lower portion of the reservoir is defined by a flange that contacts the wick (figure 17, reference numeral 602), which is considered to meet the claim limitation of a first wall. The lower portion of the additional bore near to the wick (figure 17), which is considered to meet the claim limitation of adjacent since applicant’s specification discloses that the air passage is in proximity to the wick ([0075], figure 6, reference numeral 68). The wick covers the end of the bores (figure 17).
Regarding claim 17, Lord discloses that the wick is in contact with an upper wall of the chamber (figure 17). A heater is in contact with a with the wick at ([0219], figure 7, reference numeral 112), which is considered to meet the claim limitation of overlays. The heater has a generally flat filament that defines gaps between it ([0233], figure 13, reference numeral 520), which is considered to meet the claim limitation of a flat heating surface that exposes the heater to a chamber interior via openings.
Regarding claim 18, Lord discloses that the wick is a flat pad that faces an interior of the chamber (claim 17).
Regarding claim 19, Lord discloses that the aerosol precursor includes flavorings [0265].
Regarding claim 20, Lord discloses that the bores and additional bore are within the flange (figure 17).
Regarding claim 21, Lord discloses that the smoking substitute device has an electrical power source in the form of battery [0194] and control circuitry that controls whether the heater is activated [0273].
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Lord (US 2022/0071289) as applied to claim 12 above, and further in view of Silvesstrini (US 2018/0242643).
Regarding claim 13, modified Lord teaches all the claim limitations as set forth above. Lord additionally discloses that the passage lets air enter the device in the vertical direction (figure 17), which is considered to meet the claim limitation of a first direction. Modified Lord does not explicitly teach the air flow configured to direct air in perpendicular first and second directions.
Silvesstrini teaches a handheld aerosol generating system in which liquid is delivered to the vicinity of a heating element to replenish liquid that has been vaporized by the vaporizer [0003]. Air enters a cartridge horizontally through a first air flow passage (figure 2B, reference numeral 140) and exits through a vertical second air flow passage ([0103], figure 2B, reference numeral 145). The horizontal direction is considered to meet the claim limitation of a second direction. A heater element is located on the lower surface of the first airflow passage ([0108], figure 2B, reference numeral 121). Silvesstrini additionally teaches that this arrangement allows liquid to flow to the capillary material and subsequently the heating element under the influence of gravity [0123] while reducing the risk of large droplets of liquid entering the airflow since liquid substrate must also move against the force of gravity [0070]. The heating surface is horizontal and perpendicular to the vertical direction (figure 17). It is therefore evident that the heating surface is perpendicular to the first direction.
It would therefore have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to arrange the heater and airflow pathway of modified Lord according the arrangement of Silvesstrini. One would have been motivated to do so since Silvesstrini teaches an arrangement that allows liquid to reach the heater under the influence of gravity while reducing the risk of large droplets of liquid entering the airflow since liquid substrate must also move against the force of gravity.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at 571-270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUSSELL E SPARKS/ Primary Examiner, Art Unit 1755
