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 .
Status of the Claims
Claims 1-20 are pending and are subject to this office action. This is the first Office Action on the merits of the claims.
Claim Objections
Claim 14 is objected to because of the following informalities:
Claim 14 recites, “wherein the portion is a second portions having a second outer cross section.” The term, “a second portions” appears to be a typographical error of a second portion, as the specification discloses, “a second portion having a second outer cross section” ([0063]).
Appropriate correction is required.
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-8, 10, and 12-20 are rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by Mironov (WO 2019030167 A1).
Regarding claim 1, Mironov discloses an aerosol generating device (22, Fig. 2a, pg. 9 lines 10-18) comprising:
A heater component (heating compartment 10) comprising a locking element (50) comprising a protrusion formed on an outer surface of the heater component (10), such that the heater component (10) has an outer cross section that is non-circular in shape (Fig 2a, pg. 6 lines 20-24, pg. 8 lines 28-36, pg. 9 lines 1-26, Fig. 5a, pg. 10 lines 9-20), and;
A support (proximal portion of housing 24) comprising a receptacle (chamber 34) which holds the heater component (10), where the locking elements (50) on the heater component (10) are configured to engage with corresponding recesses formed on inner surface of the receptacle (34, Fig. 2a, Fig. 3a, Fig. 5a, pg. 6 lines 20-24, pg. 9 lines 27-32, pg. 10 lines 9-20).
In regards to the limitation requiring the receptacle is engaged with the heater component to prevent rotation of the heater component relative to the support, the protrusion (50) formed on the outer surface of the heater component (10) engaged with a recess formed on the inner surface of the receptacle (34) is capable of preventing rotation of the heater component (10) relative to the support (proximal portion of housing 24, Fig 3a, Fig. 5a).
Regarding claim 2, Mironov discloses the heater component (10) is configured to receive an aerosol generating article (consumable 28) comprising an aerosol generating material within the heater component (10, Fig 2a, Fig. 4A, pg. 8 lines 28-36, pg. 9 lines 1-26).
Regarding claim 3, Mironov discloses the heater component (10) is configured such that an outer surface of an article (28) received in the heater component (10) abuts an inner surface of the heater component (10, Fig. 4a, pg. 9 lines 19-26).
Regarding claim 4, Mironov discloses the heater component (10) defines a receptacle for receiving an article (28) comprising aerosol generating material therein (Fig. 2a, Fig. 4a, pg. 9 lines 19-26).
Regarding claim 5, Mironov discloses the heater component (10) is configured such that an aerosol generating article (consumable 28) comprising an aerosol generating material can be inserted into the heater component (10, Fig 2a, Fig. 4A, pg. 8 lines 28-36, pg. 9 lines 1-26).
Regarding claim 6, Mironov discloses the heater component (10) has a flared end (protruding rim section 20) for inserting an article (28) comprising aerosol generating material into (Fig. 1, Fig. 3a, pg. 9 lines 5-10, 19-26).
Regarding claim 7, Mironov discloses the heater component (10) is substantially hollow (Fig. 1, pg. 8 lines 28-36).
Regarding claim 8, Mironov discloses the heater component (10) is substantially tubular (Fig. 1, pg. 8 lines 28-36).
Regarding claim 10, Mironov discloses the heating element (14) of the heater component (10) may be made of an electrically conductive material such as metal (pg. 3 lines 10-12, pg. 4 lines 1-5).
Regarding claim 12, The Examiner is interpreting “keyed” as the heater component comprising a feature which engages with another feature to prevent rotation.
Mironov discloses the heater component (10) comprises a locking element (50) comprising a protrusion formed on an outer surface of the heater component (10), where the locking element (50) engaged with a corresponding recess formed on inner surface of the receptacle (34) is capable of preventing rotation of the heater component (10) within the receptacle (34, Fig. 2a, Fig. 3a, Fig. 5a, pg. 6 lines 20-24, pg. 10 lines 9-20).
Therefore, the heater component is considered to be keyed to prevent rotation of the heater component within the receptacle.
Regarding claim 13, Mironov discloses the heater component (10) comprises a locking element (50, “one or more engagement features”) comprising a protrusion formed on an outer surface of the heater component (10), where the locking element (50) engaged with a corresponding recess formed on inner surface of the receptacle (34) is capable of preventing rotation of the heater component (10) within the receptacle (34, Fig. 2a, Fig. 3a, Fig. 5a, pg. 6 lines 20-24, pg. 10 lines 9-20).
Regarding claims 14 and 15, Mironov discloses a heater component (10) comprising a locking element (50) in the form of a protrusion formed on an outer surface of the heater component (10), the portion of the heater component (10) comprising the locking element (50) is considered to be a second outer cross section that is non-circular in shape and the portion of the heater component (10) comprising the protruding rim (20) is considered to be first outer cross section that is circular in shape (Fig. 5a, pg. 10 lines 9-20).
Regarding claim 16, Mironov discloses a heater component (heating compartment 10) for an aerosol generating device (22, Fig. 2a, pg. 9 lines 10-18), the heater component (10) comprising:
A locking element (50) comprising a protrusion formed on an outer surface of the heater component (10), such that the heater component (10) has an outer cross section that is non-circular in shape (Fig 2a, pg. 6 lines 20-24, pg. 8 lines 28-36, pg. 9 lines 1-26, Fig. 5a, pg. 10 lines 9-20).
Regarding claim 17, Mironov discloses the heater component (10) is configured to receive an aerosol generating article (consumable 28) comprising an aerosol generating material within the heater component (10, Fig 2a, Fig. 4A, pg. 8 lines 28-36, pg. 9 lines 1-26).
Regarding claim 18, Mironov discloses the heater component (10) is configured such that an outer surface of an article (28) received in the heater component (10) abuts an inner surface of the heater component (10, Fig. 4a, pg. 9 lines 19-26).
Regarding claim 19, Mironov discloses the heater component (10) defines a receptacle for receiving an article (28) comprising aerosol generating material therein (Fig. 2a, Fig. 4a, pg. 9 lines 19-26).
Regarding claim 20, Mironov discloses the heater component (10) is configured such that an aerosol generating article (consumable 28) comprising an aerosol generating material can be inserted into the heater component (10, Fig 2a, Fig. 4A, pg. 8 lines 28-36, pg. 9 lines 1-26).
Claim Rejections - 35 USC § 103
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 9 is rejected under 35 U.S.C. 103 as being unpatentable over Mironov (WO 2019030167 A1) in view of Reevell (US 20210378307 A1).
Regarding claim 9, Mironov discloses a heater component (10) having a length (Fig. 2a, Fig. 4a).
Mironov is silent to a length dimension of the heater component (10).
However, Reevell, directed to an aerosol generation device (100, Fig. 1, [0054]), discloses:
A heating chamber (108) configured to receive an article (128), the heating chamber (108) having a length between 30-40mm (Fig. 2, Fig. 3, [0087, 0155]). The claimed range overlaps with the range taught by the prior art and therefore the claimed range is considered prima facie obvious.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Mironov by providing the heater component with a length of 30-40mm as taught by Reevell because both Mironov and Reevell are directed to aerosol generating devices, Mironov is silent to the length of the heater component, Reevell teaches a similar heating chamber having a length of 30-40mm, and one having ordinary skill in the art would be motivated to look to similar heating components for workable ranges of the length, and this involves applying a known length range to a similar heating component in a similar device to yield predictable results.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Mironov (WO 2019030167 A1) in view of Mironov (US 20180352862 A1, hereinafter referred to as Mironov ‘2862).
Regarding claim 11, Mironov discloses the heating element (14) of the heater component (10) may be heated by a magnetic field (pg. 8 lines 28-36) and may be made of an electrically conductive material such as metal (pg. 3 lines 10-12, pg. 4 lines 1-5).
Mironov does not explicitly disclose the heater component (10) comprises a ferromagnetic material.
However, Mironov ‘2862, directed to an aerosol generating system (100, Fig. 2, [0081]), discloses:
A susceptor (20, Fig. 1, [0083]) formed of a ferromagnetic metallic material, where the susceptor material may be selected to provide a desired power dissipation within a known electromagnetic filed ([0038]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Mironov by forming the heating element of the heater component of a ferromagnetic material as taught by Mironov ‘2862 because both Mironov and Mironov ‘2862 are directed to aerosol generating devices, Mironov ‘2862 discloses susceptor materials can be selected to provide a desired power dissipation within a known magnetic field, and this involves applying a known susceptor material to a similar heating component in a similar device to yield predictable results.
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 and 16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 19/715,113.
Although the claims at issue are not identical, they are not patentably distinct from each other. The co-pending claims and the rejected claims differ in that claim 1 of the co-pending application additionally requires a heating zone configured to receive an article comprising aerosol generating material and a susceptor, a receptacle having at least one channel that interlocks with the heater component, and an inductor coil. However, claim 1 of the co-pending application requires an aerosol provision device comprising a heater component having an outer cross section that is non-circular in shape, and a support, comprising a receptacle engaged with the heater component to hold the heater component to prevent rotation of the heater component relative to the support.
Therefore, all of the elements of provisionally rejected claims 1 and 16 are present and obvious over conflicting claim 1 of co-pending Application No. 19/715,113.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Zheng (CN 106617324 A, hereinafter referring to the English Machine translation provided) discloses an electronic smoking device (10, Fig. 1) comprising:
A heating cup (102, “heater component”) comprising a buckle (114, “portion having an outer cross section that in non-circular in shape”) and a sleeve (109, “support”) comprising a receptacle (inner cavity of heating cup 102) where a groove (1092) of the receptacle engages with the buckle (114) of the heating cup (102) to prevent axial rotation (Fig. 2, Fig. 3, Fig. 4, [0030-0031, 0035]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MORGAN FAITH DEZENDORF whose telephone number is (571)272-0155. The examiner can normally be reached M-F 8am-430pm EST.
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/M.F.D./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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