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 .
1.Claim 15 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.
Claim 15, line 1, “the window” lacks antecedent basis from claim 7—ie, it is first recited in instant claim 3.
2.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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lin 2016/0366941 (see 11-14 in Figs. 1, 2 and 5; paragraph 0017) in view of Christensen et al 2017/0233114 (see 202, 205 and 209 in Fig. 2; paragraph 0064).
Lin discloses a vaporizer cartridge (13) for coupling to a vaporizer body (11, 12) wherein the cartridge comprises a housing defining a reservoir chamber including a housing/reservoir wall and a mouthpiece (14) coupled to the reservoir wall so that the inner walls of each are coplanar (see Figure 2) as set forth in instant claim 16, the primary reference essentially lacking—(1) a clear teaching of the instant air tube assembly set forth in the independent claims; (2) the aspect of a portion of the housing wall being translucent (instant claim 1); and (3) that the cartridge comprises a first and second part with first and second walls which are of different materials (instant claim 7). Concerning aspect (1), Christensen et al discloses an air tube assembly (209) including an airflow pathway and a wick housing (205) which contains a wicking element (202) and a heating element (202, 207) in a vaporization chamber. It certainly would have been obvious to one of ordinary skill in the art at the time of filing to have provided these conventional features as taught in Christensen et al in the vaporizer cartridge of Lin to facilitate the functioning of the vaporizer as is well known in the art. Concerning aspect (2), Christensen et al (paragraph 0064) teaches that a cartridge body would be translucent and it surely would have been obvious to have formed a portion of the housing in the primary reference as such dependent on aesthetic appearance desired for the vaporizer. Concerning aspect (3), it is noted that Lin (see paragraph 0017) discloses that the cartridge housing and mouthpiece would be molded of different materials and/or of different colors. It is submitted that one of ordinary skill in this art would have been able to employ such a teaching to make the reservoir housing itself from two different materials if desired to provide a more aesthetically pleasing appearance. Instant claim 2 is submitted to be taught at paragraph 0064 of Christensen et al. The aspect of the translucent portion comprising a window to view the vaporizable material when coupled to the vaporizer body as set forth in instant claims 3, 4, 11, 12, 15, 17 and 18 is submitted to have been obvious in the combination as applied since one of ordinary skill would want such a feature to enable the user to view the content of the vaporizer cartridge. It is also submitted that making the first material the translucent material (ie, instant claims 11 and 12) would have been an obvious aspect given that forming the housing of two different materials is obvious as previously set forth. As already noted, the primary reference discloses that the housing and the mouthpiece would be integrally formed of two different materials. Given this, it is reiterated that forming the housing of two different materials would itself have also been obvious. Further, it would be expected that the first and second parts –of different materials—would be coupled and/or integrally formed as recited in instant claims 8 and 9 if made in a two-color molding method as taught at paragraph 0017 of Lin. It is further submitted that making the first and second inner walls as coplanar as set forth in instant claim 10 would have been an obvious feature to facilitate a smooth flow of vaporizable material through the reservoir chamber. Figure 2 of Christensen depicts the structural relationship—ie, coupled or integrally formed—for the wick housing (205) and airflow pathway (209) (instant claims 5, 13 and 19) and also for the wick housing and/or airflow pathway and the housing (instant claims 6, 14 and 20) and one of ordinary skill in the art would have found such a relationship as obvious in the combination as applied.
3.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.
4.Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 13-18 of U.S. Patent No. 12,214,562 in view of Christensen et al and Lin. Claims 13-18 of previously issued patent 12,214,562 set forth a vaporizer cartridge substantially similar to the instant lacking certain aspects—translucent wall and the reservoir wall being made of two different materials—that are taught in Christensen et al and Lin as set forth in paragraph 2, supra. It would have been obvious to one of ordinary skill in the art to modify the vaporizer housing set forth in claims 13-18 of U.S. Patent 12,214,562 to contain these features for a more aesthetically pleasing vaporizer.
5.Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATHIEU D VARGOT whose telephone number is (571)272-1211. The examiner can normally be reached on Mon-Fri from 9 to 6.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christina A Johnson, can be reached at telephone number 571 272-1176. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATHIEU D VARGOT/Primary Examiner, Art Unit 1742
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