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 Objections
Claim 5 is objected to because of the following informalities: Claim 5 recites “the vaporizer generator assembly of claim 4,” whereas claims 1-4 consistently recite a “vapor generator assembly,” and separately recite a “vaporizer assembly.” The phrase “vaporizer generator assembly” appears to be an inadvertent combination of these two terms. Correction to “the vapor generator assembly of claim 4” is suggested for clarity. Appropriate correction is required.
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.
Claim 1-3 are rejected under 35 U.S.C. § 103 as being unpatentable over Jiang et al. (US 2018/0280636 A1) in view of Qiu (US 2018/0317558 A1).
Regarding claim 1, Jiang teaches a vapor generator assembly for an e-vaping device (atomizer 100), comprising:
a vaporizer assembly configured to heat pre-vapor formulation to form a vapor (aerosol generator 200 configured to heat tobacco liquid to generate an aerosol; ¶ [0025]).
an air intake assembly configured to direct ambient air into the vaporizer assembly, the air intake assembly at least partially defining an arcuate air inlet that extends at least partially around an outer surface of the vapor generator assembly (circular clearance 111 formed between atomizer body 101 and edge 1031 of adjusting cover 103 for admitting exterior air; ¶ [0030]).
a paraxial inlet channel extending paraxially in relation to a longitudinal axis of the vaporizer assembly, from the arcuate air inlet into an interior of the vapor generator assembly, wherein the air intake assembly is configured to establish fluid communication between the arcuate air inlet and the vaporizer assembly via at least the paraxial inlet channel (air pipe 110 includes an inflow pipe that circles the outflow pipe and carries incoming air downward to aerosol generator 200; ¶ [0030]).
Jiang further teaches an adjustable airflow structure wherein adjusting cover 103 rotates about the longitudinal axis to vary the clearance through which air enters the atomizer and thereby adjust intake airflow (¶ [0027]).
Jiang does not clearly teach wherein the air intake assembly includes an adjustment ring structure at least partially surrounding at least a portion of the vaporizer assembly, the adjustment ring structure configured to rotate around the longitudinal axis to adjustably control a cross-sectional flow area of fluid communication between the arcuate air inlet and the vaporizer assembly.
Qiu teaches an atomizer 100 including atomizer base 81 as a portion thereof, with atomizing head 1 connected to the atomizer base (¶ [0035]). Qiu further teaches an air-regulating ring 71 positioned on the periphery of atomizer base 81, wherein the ring is rotatable to change the communication area between air-regulating hole 711 and vent 811 and thereby adjust the amount of air entering atomizer 100 (¶ [0036]).
Jiang and Qiu both teach electronic-cigarette atomizers in which intake airflow supplied to the vaporizing structure is adjustably controlled. Qiu therefore teaches a known structural arrangement for implementing such airflow control using a rotatable peripheral ring positioned around a portion of the atomizer assembly.
It has been held that combining prior-art elements according to known methods to yield predictable results supports a conclusion of obviousness. MPEP § 2143(I)(A).
Therefore, it would have been obvious to modify Jiang’s adjustable airflow structure to include Qiu’s rotatable air-regulating ring positioned around a peripheral portion of the vaporizer assembly, such that rotation of the ring varies the cross-sectional flow area of fluid communication to the vaporizer, in order to provide a conveniently operable peripheral airflow-control structure for adjusting the amount of air supplied to the vaporizer.
Regarding claim 2, modified Jiang teaches the vapor generator assembly of claim 1, wherein the arcuate air inlet is at least partially defined by an arcuate gap between the air intake assembly and an outer housing of the vapor generator assembly (circular clearance 111 defined between edge 1031 of adjusting cover 103 and circular stair 1051 of end cover 105; Jiang, ¶ [0031]).
Regarding claim 3, modified Jiang teaches the vapor generator assembly of claim 1, wherein the arcuate air inlet is an annular air inlet that extends around an entirety of the outer surface of the vapor generator assembly (circular clearance 111 extending circumferentially around the vapor generator assembly; Jiang, ¶ [0030]; Fig. 2).
Allowable Subject Matter
Claims 4-8 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, but remain rejected on the ground of nonstatutory obviousness-type double patenting as set forth below.
Regarding claim 4, the prior art does not teach or render obvious the claimed air intake assembly including a structural element having an inner surface and an adjustment ring structure having an outer surface, wherein the outer surface of the adjustment ring structure and the inner surface of the structural element at least partially define an arcuate inlet channel extending from the arcuate air inlet, the arcuate inlet channel at least partially surrounding the adjustment ring structure, in combination with the other limitations of claim 4.
In particular, Jiang and Qiu teach adjustable airflow arrangements and rotatable airflow-control structures, but do not teach the claimed nested arrangement in which an arcuate inlet channel is formed between the outer surface of the adjustment ring structure and the inner surface of a surrounding structural element, with the arcuate inlet channel at least partially surrounding the adjustment ring structure. The additional prior art considered likewise does not teach or suggest this particular concentric airflow-channel arrangement in combination with the limitations inherited from claim 1.
Claims 5-8 would be allowable over the prior art by virtue of their dependency from claim 4, but remain subject to the double patenting rejections below.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-8 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 12,133,553.
Although the claims at issue are not identical, they are not patentably distinct.
Regarding claim 1, patented claim 1 recites a vapor generator assembly including a vaporizer assembly, an air intake assembly defining an arcuate air inlet and paraxial inlet channel, and an adjustment ring structure surrounding at least a portion of the vaporizer assembly and rotatable about the longitudinal axis to adjustably control a cross-sectional flow area between the arcuate air inlet and the vaporizer assembly. Patented claim 1 further recites additional limitations directed to an orifice extending through the adjustment ring, a structural element, and an arcuate inlet channel. Thus, present claim 1 is broader than and encompasses the patented subject matter.
Regarding claim 2, patented claim 2 further recites that the arcuate air inlet is at least partially defined by an arcuate gap between the air intake assembly and an outer housing of the vapor generator assembly.
Regarding claim 3, patented claim 3 further recites that the arcuate air inlet is an annular air inlet extending around an entirety of the outer surface of the vapor generator assembly.
Regarding claim 4, patented claim 1 further recites the structural element having first and second outer surfaces, wherein an outer surface of the adjustment ring structure and an inner surface of the structural element at least partially define an arcuate inlet channel surrounding the adjustment ring structure, and wherein adjustable fluid communication is established through the paraxial inlet channel and arcuate inlet channel. Present claim 4 omits the additional patented requirement that an orifice extend through the adjustment ring structure and therefore is not patentably distinct.
Regarding claim 5, patented claim 4 recites an e-vaping device including the vapor generator assembly and a detachably coupled power supply assembly, wherein an inner surface of the power-supply outer housing defines an outer radial boundary of the arcuate inlet channel.
Regarding claims 6-8, patented claims 5-7 respectively recite the arcuate-gap, annular-air-inlet, and rechargeable-battery limitations recited in present claims 6-8.
Claims 1-8 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-8 of U.S. Patent No. 11,871,784.
Although the claims at issue are not identical, they are not patentably distinct.
Regarding claim 1, patented claim 1 recites a vapor generator assembly including a vaporizer assembly, an arcuate air inlet, an adjustment ring structure surrounding at least a portion of the vaporizer assembly and rotatable about the longitudinal axis to adjustably control airflow, and a structural element forming an annular inlet channel surrounding the adjustment ring structure. The patented claim additionally requires a reservoir and a plurality of differently sized orifices extending through the adjustment ring. Present claim 1 omits those additional restrictions and therefore broadly encompasses the patented arrangement.
Regarding claims 2 and 3, patented claims 2 and 3 respectively recite the arcuate-gap limitation and the annular-air-inlet limitation recited in present claims 2 and 3.
Regarding claim 4, patented claim 4 recites a separate inlet channel extending paraxially from the arcuate air inlet to the inner surface of the structural element, an annular inlet channel defined between the outer surface of the adjustment ring and the inner surface of the structural element, and adjustable fluid communication through the separate inlet channel, annular inlet channel, and selected orifice. Present claim 4 removes the plurality-of-orifices and selected-orifice restrictions and therefore is not patentably distinct from the patented configuration.
Regarding claim 5, patented claim 5 recites the e-vaping device, detachably coupled power supply assembly, and power-supply outer housing having an inner surface defining the outer annular boundary of the inlet channel.
Regarding claims 6-8, patented claims 6-8 respectively recite the arcuate-gap, annular-inlet, and rechargeable-battery limitations recited in present claims 6-8.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER KESSIE whose telephone number is (571)272-7739. The examiner can normally be reached Monday - Thursday 7:00am - 5:00pm.
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/JENNIFER A KESSIE/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
