DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Regarding Declaration under 37 CFR 1.131
The Declaration filed on 01/06/2026 under 37 CFR 1.131(a) has been considered but is ineffective to overcome the Fang (US 9022026B2) reference.
Although the scope of the declaration is commensurate with the scope of the claims 80-84, the scope of the declaration is not commensurate with the scope of the claim(s) 85-89 because there is insufficient evidence that the claimed light emitting diode of independent claim 85 was included in the device(s) sold on 11/5/2009 and 11/20/2009 . Although the Declaration includes a picture having an arrow pointing to the end of a FUMA battery there is no indication in the picture suggesting the claimed light emitting diode. Evidence of the inclusion of an LED first occurs in related US application number 12843917 filed 07/27/2010. Similarly, there is insufficient evidence in the declaration to support the claim limitations of a sensor and a controller within the FUMA battery depicted in Fig. 2 of Exhibit A of the Declaration. Applicant merely states that the claimed elements, LED, sensor and controller are present.
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 pre-AIA 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) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
Claim(s) 85, 87-89 is/are rejected under pre-AIA 35 U.S.C. 102(a) as being anticipated by Fang (US 9022026 B2).
Fang discloses in reference to claim:
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85. An electronic vaporizer comprising: a power source 300 including a battery 23, a light emitting diode 27, a sensor 514 (sensing pressure), and a controller 19; and a cartridge 200 mechanically and electrically coupled with the power source 300, the cartridge including, a housing 1 having an interior and a solution holding reservoir 2/110 configured to hold a liquid solution, the housing having a first end at 102 and a second end at 104 that is opposite the first end, the housing having at least one aperture 104 at the second end, the housing configured to releasably mechanically couple to the power source 300; a resistive heating element 7 located in the interior of the housing 1, the at least one aperture 104 in communication with the resistive heating element 7 such that an airflow from the resistive heating element 7 to the at least one aperture 104 passes at least partially through an airflow passageway 106 in the interior of the housing, a portion of the airflow passageway extending through a center of the housing for at least a majority of an axial length of the housing, and the solution holding reservoir 110 (including wall 1) surrounding the portion of the airflow passageway 106 extending through the center of the housing for at least a majority of the axial length of the housing, the resistive heating element 7 extending transversely to a central longitudinal axis of the housing such that the airflow passes over the resistive heating element during use of the electronic vaporizer; conductive elements 502/504 configured to electrically couple to the power source 300 when the cartridge is mechanically coupled with the power source 300,
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wherein at least a portion of each of the conductive elements 502/504 resides in the interior of the housing (as switch 18); and a wicking material 3, 4, 5, 6, 8 configured to draw the liquid solution held by the solution holding reservoir 110 toward the resistive heating element 7, the resistive heating element 7 electrically coupled with the conductive elements 502/504 and configured to vaporize at least a portion of the liquid solution, the resistive heating element 7responsive to electrical power received from the power source 300.
A cartridge 200 configured to mechanically and electrically couple to a power source of an electronic vaporizer, the cartridge comprising: a housing 1 having an interior and a solution holding reservoir 2/110 configured to hold a liquid solution, the housing having a first end at 102 and a second end at 104 that is opposite the first end, the housing having at least one aperture 104 at the second end 104, the housing configured to releasably mechanically couple to the power source 300;
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a resistive heating element 7 located in the interior of the housing 1 (see fig. 1), the at least one aperture 104 in communication with the resistive heating element 7 such that an airflow from the resistive heating element to the at least one aperture passes at least partially through an airflow passageway 106 in the interior of the housing, a portion of the airflow passageway 160 extending through a center of the housing for at least a majority of an axial length of the housing, and the solution holding reservoir 110 surrounding the portion of the airflow passageway 106 extending through the center of the housing for at least a majority of the axial length of the housing (see shaded region in annotated fig. 1), the resistive heating element 7 extending transversely to a central longitudinal axis of the housing such that the airflow passes over the resistive heating element during use of the electronic vaporizer; conductive elements 502/504 configured to electrically couple to the power source when the cartridge is mechanically coupled with the power source, wherein at least a portion of each of the conductive elements (being represented as switch 18) resides in the interior of the housing (see fig. 1) and ; and a wicking material (3, 4, 5, 6, 8) configured to draw the liquid solution held by the solution holding reservoir toward the resistive heating element 7, the resistive heating element electrically coupled with the conductive elements 502/504 and configured to vaporize at least a portion of the liquid solution (this is the intention of the device), the resistive heating element responsive to electrical power received from the power source 300.
87. The electronic vaporizer of claim 85 wherein only the resistive heating element and the wicking material divert the airflow along the airflow passageway. Note that only heating element 7 and the wicking material 6 are positioned along the he airflow passageway so as to impede the air flow therethrough.
88. The electronic vaporizer of claim 85 wherein the resistive heating element is located between opposite sides (left and right) of the solution holding reservoir (represented by wall 1 making up a portion of the reservoir) .
89. The electronic vaporizer of claim 85wherein the wicking material 3, 4, 5, 6, 8 extends from the solution holding reservoir 110 to the resistive heating element 7, and the wicking material is configured to channel the liquid solution through the wicking material from the solution holding reservoir to the resistive heating element.
Referring to FIG. 3, the atomizer 200 includes a liquid conducting element 4, a stainless steel pipe 5, a sleeve 6, a heating wire 7, a metal fiber element 8, an atomizing cup 9, a nonwoven fabric 10, a nut 11, a first washer 12, and a first pin 13. The stainless steel pipe 5 is closely attached to an inner sidewall of the inhalation element 1. The inhalation element 1, the stainless steel pipe 5, the liquid conducting material 4, the metal fiber element 8 and the atomizing cup 9 are coaxially arranged in that order. Both of an end of the liquid conducting material 4 and an end of the metal fiber element 8 contact the absorbent element 3. The atomizing cup 9 defines a cavity 112 in a middle portion thereof. The other end of the liquid tank 2 is received in the atomizing cup 9, such that the cavity 112 communicates with the smoke channel 106. The atomizing cup 9 defines two coaxial through holes 114 on a sidewall thereof communicating with the cavity 112. The sleeve 6 is received in the cavity 112 and aligned with the two through holes 114, such that the liquid guided by the metal fiber element 8 can flow into the sleeve 6. The heating wire 7 is located inside the sleeve 6. When the heating wire 7 is heated by electricity, the liquid is vaporized and then passes through the smoke channel 106 and the inhalation hole 104 to reach a user's mouth. The atomizer 200 uses the metal fiber element 8 to guide the liquid to reach the heating wire 7 according to capillary principle, such that an improved atomizing effect can be achieved. In the illustrated embodiment, the heating wire 7 is made of nichrome. The atomizing cup 9 is made of polytetrafluoroethene, which is used as a bracket for the heating wire to avoid heat dissipation. The liquid conducting material 4 is capable of storing the tobacco flavored liquid temporarily according to capillary principle and can resist heat from conducting to container 100 effectively.
Claim(s) 80-84 is/are rejected under pre-AIA 35 U.S.C. 102(a) as being anticipated by Fang (CN 201085044Y).
Fang discloses in reference to claim:
80. (Previously Presented) A cartridge configured to mechanically and electrically couple to a power source 3 of an electronic vaporizer, the cartridge comprising;
a housing 1 having an interior and a solution holding reservoir 7 configured to hold a liquid solution, the housing having a first end B and a second end A that is opposite the first end, the housing having a first aperture D at the first end and a second aperture C at a center of the second end, the first aperture and the second aperture in communication with one another to permit an airflow from the first aperture to the second aperture at least partially through an airflow passageway in the interior of the housing, the airflow passageway extending through the center of the housing for at least a majority of an axial length of the housing, and the housing configured to releasably mechanically couple to the power source 3;
a resistive heating element 5 located in the interior of the housing 1, the resistive heating element extending transversely to a central longitudinal axis of the housing (see figure), the resistive heating element located between the first aperture and the second aperture such that the airflow passes over the resistive heating element during use of the electronic vaporizer, the resistive heating element configured to electrically couple to the power source when the cartridge is mechanically coupled with the power source; and
a wicking material 15 configured to draw the liquid solution held by the solution holding reservoir toward the resistive heating element, the resistive heating element
configured to vaporize at least a portion of the liquid solution, and the resistive heating element responsive to electrical power received from the power source,
wherein the airflow passageway has an axial length between the resistive heating element and the second aperture, and the solution holding reservoir surrounds a majority of the axial length of the airflow passageway between the resistive heating element and the second aperture. See Figure 1
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81. (Previously Presented) The cartridge of claim 80, further comprising a solution in the solution holding reservoir, the solution comprising one of propylene glycol and nicotine. Fang teaches the use of nicotine liquid.
82. (Previously Presented) The cartridge of claim 80, wherein only the resistive heating element and the wicking material divert the airflow along the central longitudinal axis of the housing between the first aperture and the second aperture. See Fig. 1
83. The cartridge of claim 80, wherein the resistive heating element 5 is located between opposite sides of the solution holding reservoir. See figure 1 showing the heating element spaning from opposite sides of the reservoir 7.
84. The cartridge of claim 80, wherein the wicking material 15 extends from the solution holding reservoir 7 to the resistive heating element 5, and the wicking material 15 is configured to channel the liquid solution through the wicking material from the solution holding reservoir 7 to the resistive heating element 5.
Claim(s) 80-89 is/are rejected under pre-AIA 35 U.S.C. 102(a) as being anticipated by Wang (CN 101366554 A).
Wang discloses in reference to claim:
85. an electronic vaporizer comprising:
a power source including a battery 110, a light emitting diode 114, a sensor 112, and a controller 113; and a cartridge (see fig. 3) mechanically and electrically coupled with the power source, the cartridge including, a housing [assembly 102/101/107) having an interior and a solution holding reservoir 105 configured to hold a liquid solution, the housing 102 having a first end and a second end that is opposite the first end, the housing having a first aperture 106 at the first end and a second aperture 101 at a center of the second end, the first aperture and the second aperture in communication with one another to permit an airflow from the first aperture 106 to the second aperture 101 at least partially through an airflow passageway (through and/or around medium 105) in the interior of the housing 102, the airflow passageway extending through the center of the housing for at least a majority of an axial length of the housing (see Fig. 3),
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and the housing 102 configured to releasably mechanically couple to the power source 110 at 108 ,
a resistive heating element 104 located in the interior of the housing 102, the resistive heating element extending (at least partially) transversely to a central longitudinal axis of the housing, the resistive heating element located between the first aperture (one end of housing 102—near end 107) and the second aperture (the opposite end of housing 102, near end 101) such that the airflow passes over the resistive heating element during use of the electronic vaporizer, and the resistive heating element configured to electrically couple to the power source when the cartridge is mechanically coupled with the power source; and a wicking material (material 105 immediately surrounding heater 104) configured to draw the liquid solution held by the solution holding reservoir (material 105 radially located away from the heater 104) toward the resistive heating element 104, the resistive heating element configured to vaporize at least a portion of the liquid solution, and the resistive heating element responsive to electrical power received from the power source 110, wherein the airflow passageway (through material 105) has an axial length between the resistive heating element and the second aperture (near end 101), and the solution holding reservoir 2 surrounds a majority of the axial length of the airflow passageway between the resistive heating element and the second aperture (near end 101).
86. (New) The electronic vaporizer of claim 85, further comprising a solution in the solution holding reservoir, the solution comprising one of propylene glycol and nicotine. Wang discloses a nicotine liquid.
87. (New) The electronic vaporizer of claim 85, wherein only the resistive heating element 104 and the wicking material 105 divert (dispersing through the material 105) the airflow along the central longitudinal axis of the housing 102 between the first aperture and the second aperture. See above
88. (Previously Presented) The electronic vaporizer of claim 85, wherein the resistive heating element is located between opposite sides of the solution holding reservoir. See figure 1 showing the heating element spanning from opposite sides of the reservoir 7.
89. (New) The electronic vaporizer of claim 85, wherein the wicking material 105 extends from the solution holding reservoir 105 to the resistive heating element 104, and the wicking material is configured to channel the liquid solution through the wicking material 105 (from the radially distal portions to proximate the heater 104) from the solution holding reservoir to the resistive heating element.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 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.
The Supreme Court in KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 U.S.C. 103 should be made explicit.
EXEMPLARY RATIONALES
Exemplary rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
Claim 86 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Fang (US 9022026B2) in view of Hon (US 7832410).
Fang discloses the claimed invention except in reference to claim:
81. The cartridge of claim 80, further comprising a solution in the solution holding reservoir, the solution comprising one of propylene glycol and nicotine.
86. The electronic vaporizer of claim 85, further comprising a solution in the solution holding reservoir, the solution comprising one of propylene glycol and nicotine.
Fang discloses a tobacco flavored liquid, without explicitly disclosing the use of propylene glycol and nicotine Hon discloses the use propylene glycol and nicotine in a electronic cigarette. Specifically, The nicotine solution for atomization contains 0.4-3.5% nicotine, 0.05-2% cigarette essence, 0.1-3.1% organic acid, 0.1-0.5% anti-oxidation agent, and the rest is 1,2-propylene glycol.
As the use of nicotine in e-cigarettes is well known, the use of a tobacco flavored liquid containing nicotine and prolylene glycol would have been obvious to one of skill in the art.
Claim(s) 85-89 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Fang (CN 201085044Y).
Fang CN 201085044Y discloses the claimed invention except the explicit use of an LED for the lighting display recited in claim 85. As the use of LEDs for lighting displays on electronic cigarettes is well known, see Wang as evidence, one of skill in the art would have found it obvious to provide the lighting display 17 as a LED display.
Response to Arguments
Applicant's arguments filed 01/20/2026 have been fully considered but they are not persuasive. Applicant’s argument relies entirely on the Declaration under 37CFR 1.131 to overcome the applied art, however the Declaration is not sufficient to overcome the rejection of claims 85-89.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOR S CAMPBELL whose telephone number is (571)272-4776. The examiner can normally be reached M,W-F 6:30-10:30, 12-4.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ibrahime Abraham can be reached at 5712705569. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THOR S CAMPBELL/
Primary Examiner
Art Unit 3761
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