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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 30 Jan 2026 has been entered.
Claims 1-3, 6-11, 14-20 and 23-28 are pending in the application. Claims 1 and 19 are currently amended. Applicant’s amendment to the Claims have overcome each and every objection previously set forth in the Final Office Action mailed 01 Aug 2025.
The prior 35 U.S.C. 103 rejection is withdrawn as requested (Pg. 6-8) based on the amendment to the claims.
Response to Arguments
Applicant’s arguments, see Pg. 6-8, filed 30 Jan 2026, with respect to claims 1 and 19 have been fully considered and are persuasive. The 35 U.S.C. 103 rejection has been withdrawn.
Examiner concurs with applicant’s assertion that Dunfield et al. (U.S. Pub. 2005/0150489) fails to teach the specific geometric and orientation of the electronic actuator (Pg. 6-7). The prior 35 U.S.C. 103 rejection is thus withdrawn.
However, Robertson et al. (U.S. Patent 5487378), as cited in the Conclusion section of the preceding Office actions, is now read on the claims.
Claim Rejections - 35 USC § 102
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-2, 7-8, 17-18 and 28 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Robertson et al. (U.S. Patent 5487378).
Regarding claim 1, Robertson discloses an electronically actuated droplet delivery device (Figs. 15-19; Col. 15-17) comprising: a housing (#618 in text, #619 in figures) comprising a mouthpiece (Fig. 15b #602) located at an airflow exit side of the housing; a fluid reservoir (Fig. 16 #606) disposed within or in fluid communication with the housing; an aperture plate (Fig. 16 #622; Col. 16, Col. 3, Ln. 39-45) having a plurality of openings (Fig. 18; Col. 3, Ln. 39-45) formed through its thickness, wherein the plurality of openings include multiple sizes (Col. 3, Ln. 27-28 – different diameters) and the fluid reservoir is in fluid communication with the aperture plate; and an electronic actuator (Fig. 17 #624; Col. 16) having an axisymmetric geometry (Figs. 17-18 #624 is symmetrically annular) and mechanically coupled to a central region of the aperture plate (Figs. 17-18) and operable to oscillate the aperture plate at a frequency to thereby generate an ejected stream of droplets from fluid supplied by the fluid reservoir (Col. 3 & 16).
Regarding claim 2, Robertson discloses at least about 50% of droplets in the ejected stream of droplets have an average ejected droplet diameter of less than about 5 microns (Col. 3, Ln. 17-23 – maximum opening below 5 microns to produce droplets within that range).
Regarding claim 7, Robertson discloses the plurality of openings includes one or more openings having an exit dimension at an exit side of the aperture plate from which the ejected stream of droplets is ejected that is different from an entrance dimension at an entrance side of the aperture plate that receives fluid from the fluid reservoir (Col. 3, Ln. 28-31 – tapered).
Regarding claim 8, Robertson discloses the plurality of openings includes one or more openings having an exit dimension at an exit side of the aperture plate from which the ejected stream of droplets is ejected that is different from an entrance dimension at an entrance side of the aperture plate that receives fluid from the fluid reservoir (Col. 3, Ln. 28-31 – tapered).
Regarding claim 17, Robertson discloses the multiple sizes include openings with different diameters (Col. 3, Ln. 27-28 – different diameters).
Regarding claim 18, Robertson discloses the multiple sizes include openings with different diameters (Col. 3, Ln. 27-28 – different diameters).
Regarding claim 28, Robertson discloses the aperture plate has a circular (Figs. 16-18 #622 is circular in correspondence to #624), dome or oval shape.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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(s) 3 and 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Robertson et al. (U.S. Patent 5487378) in view of Voges (U.S. Patent 6196218).
Regarding claim 3, Robertson fails to disclose the plurality of openings includes different shapes.
Voges teaches a dispenser-head (Fig. 6 #110; Col. 9-11) including ejection pores which can be of different shapes (Col. 11, Ln. 15-25). Voges teaches differently shaped openings as obviously selectable to provide variations in ejected droplets (Col. 11, Ln. 15-25).
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have incorporated in Robertson the plurality of openings includes different shapes based upon an obvious design choice which allows variations in ejected droplet size in view of Voges.
Regarding claim 6, Robertson teaches the invention as modified above and together with Voges further teaches the plurality of openings includes one or more openings having an exit dimension at an exit side of the aperture plate from which the ejected stream of droplets is ejected that is different from an entrance dimension at an entrance side of the aperture plate that receives fluid from the fluid reservoir (Robertson – Col. 3, Ln. 28-31 – tapered; Voges – Col. 11, Ln. 18-25 – e.g. conical).
Claim(s) 9-10, 15-16, 19 and 24-27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Robertson et al. (U.S. Patent 5487378) in view of Smith et al. (U.S. Pub. 2003/0140921).
Regarding claim 9, Robertson fails to disclose the fluid reservoir includes a fluid with nicotine or a chemical that is in marijuana.
Robertson teaches the inhaler as useable with a variety of liquid medicaments (Col. 2, Ln. 49 – Col. 3, Ln. 7). Smith teaches an aerosol generator (e.g. Figs. 1 & 16a-17) and teaches a wide range of medicated inhalable liquids can be selected from, to include nicotine (¶0061). One of ordinary skill in the art would thus have considered nicotine to be an obvious particular aerosolizable liquid for selection when using the device of Robertson.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Robertson the fluid includes nicotine based upon an obvious design choice to select nicotine from amongst commonly recognized liquid medicaments suitable for aerosolization in view of Smith.
Regarding claim 10, Robertson fails to disclose the fluid reservoir includes a fluid with nicotine or a chemical that is in marijuana.
Robertson teaches the inhaler as useable with a variety of liquid medicaments (Col. 2, Ln. 49 – Col. 3, Ln. 7). Smith teaches an aerosol generator (e.g. Figs. 1 & 16a-17) and teaches a wide range of medicated inhalable liquids can be selected from, to include nicotine (¶0061). One of ordinary skill in the art would thus have considered nicotine to be an obvious particular aerosolizable liquid for selection when using the device of Robertson.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Robertson the fluid includes nicotine based upon an obvious design choice to select nicotine from amongst commonly recognized liquid medicaments suitable for aerosolization in view of Smith.
Regarding claim 15, Robertson fails to disclose the fluid reservoir includes a fluid with nicotine or a chemical that is in marijuana.
Robertson teaches the inhaler as useable with a variety of liquid medicaments (Col. 2, Ln. 49 – Col. 3, Ln. 7). Smith teaches an aerosol generator (e.g. Figs. 1 & 16a-17) and teaches a wide range of medicated inhalable liquids can be selected from, to include nicotine (¶0061). One of ordinary skill in the art would thus have considered nicotine to be an obvious particular aerosolizable liquid for selection when using the device of Robertson.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Robertson the fluid includes nicotine based upon an obvious design choice to select nicotine from amongst commonly recognized liquid medicaments suitable for aerosolization in view of Smith.
Regarding claim 16, Robertson fails to disclose the fluid reservoir includes a fluid with nicotine or a chemical that is in marijuana.
Robertson teaches the inhaler as useable with a variety of liquid medicaments (Col. 2, Ln. 49 – Col. 3, Ln. 7). Smith teaches an aerosol generator (e.g. Figs. 1 & 16a-17) and teaches a wide range of medicated inhalable liquids can be selected from, to include nicotine (¶0061). One of ordinary skill in the art would thus have considered nicotine to be an obvious particular aerosolizable liquid for selection when using the device of Robertson.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Robertson the fluid includes nicotine based upon an obvious design choice to select nicotine from amongst commonly recognized liquid medicaments suitable for aerosolization in view of Smith.
Regarding claim 19, Robertson discloses an electronically actuated droplet delivery device (Figs. 15-19; Col. 15-17) comprising: a housing (#618 in text, #619 in figures) comprising a mouthpiece (Fig. 15b #602) located at an airflow exit side of the housing; a fluid reservoir (Fig. 16 #606) disposed within or in fluid communication with the housing; an aperture plate (Fig. 16 #622; Col. 16, Col. 3, Ln. 39-45) having a plurality of openings (Fig. 18; Col. 3, Ln. 39-45) formed through its thickness, wherein the plurality of openings include multiple sizes (Col. 3, Ln. 27-28 – different diameters) and the fluid reservoir is in fluid communication with the aperture plate; an electronic piezoelectric actuator (Fig. 17 #624; Col. 16) having an axisymmetric geometry (Figs. 17-18 #624 is symmetrically annular) and mechanically coupled to a central region of the aperture plate (Figs. 17-18) and operable to oscillate the aperture plate at a frequency to thereby generate an ejected stream of droplets from fluid supplied by the fluid reservoir (Col. 3 & 16); a pressure sensor (Fig. 1a #5 or Fig. 1b #9; Col. 9, Ln. 9-28 with pressure sensor discussed as a specific form in Col. 7, Ln. 13-38) coupled to the housing and configured to enable power to the electronic piezoelectric actuator (Col. 7, Ln. 13-38 & Col. 9, Ln. 9-28).
Robertson fails to disclose a fluid in the fluid reservoir that includes nicotine or a chemical that is in marijuana.
Robertson teaches the inhaler as useable with a variety of liquid medicaments (Col. 2, Ln. 49 – Col. 3, Ln. 7). Smith teaches an aerosol generator (e.g. Figs. 1 & 16a-17) and teaches a wide range of medicated inhalable liquids can be selected from, to include nicotine (¶0061). One of ordinary skill in the art would thus have considered nicotine to be an obvious particular aerosolizable liquid for selection when using the device of Robertson.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Robertson the fluid includes nicotine based upon an obvious design choice to select nicotine from amongst commonly recognized liquid medicaments suitable for aerosolization in view of Smith.
Regarding claim 24, Robertson teaches the invention as modified above and further teaches the plurality of openings includes one or more openings having an exit dimension at an exit side of the aperture plate from which the ejected stream of droplets is ejected that is different from an entrance dimension at an entrance side of the aperture plate that receives fluid from the fluid reservoir (Col. 3, Ln. 28-31 – tapered).
Regarding claim 25, Robertson teaches the invention as modified above and further teaches the multiple sizes include openings with different diameters (Col. 3, Ln. 27-28 – different diameters).
Regarding claim 26, Robertson teaches the invention as modified above and further teaches the multiple sizes include openings with different diameters (Col. 3, Ln. 27-28 – different diameters).
Regarding claim 27, Robertson teaches the invention as modified above and further teaches the aperture plate has a circular (Figs. 16-18 #622 is circular in correspondence to #624), dome or oval shape.
Claim(s) 11 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Robertson et al. (U.S. Patent 5487378) in view of Voges (U.S. Patent 6196218) and further in view of Smith et al. (U.S. Pub. 2003/0140921).
Regarding claim 11, Robertson teaches the invention as modified above but fails to teach the fluid reservoir includes a fluid with nicotine or a chemical that is in marijuana.
Robertson teaches the inhaler as useable with a variety of liquid medicaments (Col. 2, Ln. 49 – Col. 3, Ln. 7). Smith teaches an aerosol generator (e.g. Figs. 1 & 16a-17) and teaches a wide range of medicated inhalable liquids can be selected from, to include nicotine (¶0061). One of ordinary skill in the art would thus have considered nicotine to be an obvious particular aerosolizable liquid for selection when using the device of Robertson.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in the modified Robertson the fluid includes nicotine based upon an obvious design choice to select nicotine from amongst commonly recognized liquid medicaments suitable for aerosolization in view of Smith.
Regarding claim 14, Robertson teaches the invention as modified above but fails to teach the fluid reservoir includes a fluid with nicotine or a chemical that is in marijuana.
Robertson teaches the inhaler as useable with a variety of liquid medicaments (Col. 2, Ln. 49 – Col. 3, Ln. 7). Smith teaches an aerosol generator (e.g. Figs. 1 & 16a-17) and teaches a wide range of medicated inhalable liquids can be selected from, to include nicotine (¶0061). One of ordinary skill in the art would thus have considered nicotine to be an obvious particular aerosolizable liquid for selection when using the device of Robertson.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in the modified Robertson the fluid includes nicotine based upon an obvious design choice to select nicotine from amongst commonly recognized liquid medicaments suitable for aerosolization in view of Smith.
Claim(s) 20 and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Robertson et al. (U.S. Patent 5487378) in view of Smith et al. (U.S. Pub. 2003/0140921) and further in view of Voges (U.S. Patent 6196218).
Regarding claim 20, Robertson teaches the invention as modified above but fails to teach the plurality of openings includes different shapes.
Voges teaches a dispenser-head (Fig. 6 #110; Col. 9-11) including ejection pores which can be of different shapes (Col. 11, Ln. 15-25). Voges teaches differently shaped openings as obviously selectable to provide variations in ejected droplets (Col. 11, Ln. 15-25).
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have incorporated in the modified Robertson the plurality of openings includes different shapes based upon an obvious design choice which allows variations in ejected droplet size in view of Voges.
Regarding claim 23, Robertson teaches the invention as modified above and together with Voges further teaches the plurality of openings includes one or more openings having an exit dimension at an exit side of the aperture plate from which the ejected stream of droplets is ejected that is different from an entrance dimension at an entrance side of the aperture plate that receives fluid from the fluid reservoir (Robertson – Col. 3, Ln. 28-31 – tapered; Voges – Col. 11, Ln. 18-25 – e.g. conical).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH D BOECKER whose telephone number is (571)270-0376. The examiner can normally be reached M-F 9:00 AM - 4:00 PM.
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/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785
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