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
This office action is in response to Applicant’s amendments filed 08/24/2026.
Claims 1-30 are pending and are subject to this Office Action.
Claims 1, 3, 5-8, 10-11, 14-15, 17-18, 23-24, 26 and 28-29 are amended.
Response to Amendment
The Examiner withdraws the 112 rejections of claims 14, 18, 21 and 29-30 for being indefinite due to amendments to the claims filed 08/24/2026.
Response to Arguments
Applicant’s arguments, see pages 18-27, filed 08/24/2026, with respect to the 103 rejection of independent claims 1, 6, 15 and 24 under have been fully considered and they are persuasive. The independent claims have been amended to require a specific selected hydroxyl and metallic impurity content. The prior art rejection of record does not explicitly address selecting the hydroxyl content to obtain the claimed ultraviolet and infrared wavelength bands. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of the same prior art references Hu, Lambert, Seok, Liu and Bessant.
On pages 21-25, regarding independent claims 1, 6, 15 and 24, the Applicant argues that the prior art of record does not appropriately teach the claimed selected ultraviolet and infrared wavelength bands. Specifically, the Applicant notes that the Examiners reasoning directed to “how spectral identification of materials is conducted” would apply to a material identification system and not a heating system. The applicant further argues that this principle would not make obvious the correlation between the first ultraviolet wavelength band overlapping an electronic absorption feature of at least one active constituent of a precursor and the first infrared wavelength and overlapping a vibrational absorption mode of at least one carrier fluid of the precursor. Lastly, the Applicant argues that that one having ordinary skill in the art would not be motivated to look to the wafer curing window of Lambert, as it does not relate to a banded absorption feature of a precursor material and serves a different function than a device intended to heat a precursor material.
The Examiner disagrees.
The Examiner notes that the quoted statement of obviousness originates from the rejection of claim 11, directed towards selecting emission wavelengths, the subject matter of which has now been incorporated into the independent claims.
The Examiner apologizes for confusion this statement may have caused but maintains that spectral identification and absorption are applications of the same principle, wherein a material may absorb or reflect certain wavelengths of light. The Examiner merely meant that this is how spectral absorption of materials is conducted. This statement is not conclusory, as argued by the applicant, but rather a known principle of science. For example, black material will heat more quickly in the sun than white material, as it absorbs a broader range of wavelengths of light.
Regarding the argument to selecting wavelength bands corresponding to precursor components, the Examiner further maintains that while the prior art does not tie any wavelength band to a precursor absorption feature, this correlation would be apparent to one having ordinary skill, as emitting and transmitting an overlapping wavelength would be necessary for heating the precursor.
The Examiner notes that the precursor material worked upon in the device would not necessarily change or further limit the structure of the device. Specifically, the claims do not require the presence of a certain precursor material that would limit the composition of the fused silica. Similarly, the way in which the device interacts with a precursor material would not alter the structure of the device itself. The device may be capable of use with any precursor material, but the precursor material would not necessarily change the inherent pre-determined structure of the device.
The Examiner emphasizes that the claim is directed to a product. The limitation of selecting a particular fused silica composition according to a desired precursor material appears to be a product by process limitation attempting to capture the process of making the structure such that it works with a certain precursor. Functional language such as this does not further limit the scope of the claim. The Examiner notes that the Applicant has not claimed a particular precursor nor claimed parameters for the selection/creation of a fused silica composition. As such, the scope of the claim is not further bound by the limitation, as any fused silica content may be applied depending on the desired precursor material. In other words, for any given fused silica composition, the device would be capable of functioning as claimed for some precursor material such that the fused-silica component transmits the first ultraviolet wavelength band and the first infrared wavelength band into the precursor-containing region while permitting wavelength-dependent attenuation of other ultraviolet and infrared wavelength bands, the first ultraviolet wavelength band overlapping an electronic absorption feature of at least one active constituent of a precursor and the first infrared wavelength and overlapping a vibrational absorption mode of at least one carrier fluid of the precursor as claimed.
As previously stated, one having ordinary skill in the art would recognize that to irradiate and heat a precursor material, certain wavelengths would be selected and filtered based on the properties of the precursor material. Lambert teaches that this filtration may be altered by the hydroxyl content and metallic impurity content of the fused silica ([0080]). The Examiner therefore maintains that it would be within the capabilities of one having ordinary skill in the art to select a certain fused silica hydroxyl and metal impurity content to achieve the desired filtering or transmission of wavelengths to appropriately heat the precursor material.
Regarding the Applicant’s argument to the relevance of Lambert, the Examiner maintains that Lambert is appropriately applied to primary art reference Hu. Both references are directed to devices that transmit light through a fused silica component to irradiate a material on the other side of the fused silica. One having ordinary skill in the art would reasonably look to other inventions that transmit light through fused silica, such as the invention of Lambert, to understand and apply fused silica concepts to Hu. Although Lambert does not teach the light being used to specifically generate vapor from a precursor, this does not preclude its application to Hu. Lambert teaches the selective transmission of wavelengths through fused silica to irradiate a substrate on the other side of the fused silica, which is the same principle as used by Hu to heat the precursor material. The principles of selective transmission would therefore be applicable to the fused silica of Hu. Additionally, one having ordinary skill in the art would recognize that the selective wavelength bands taught in principle by Lambert, would be adjustable to suit the precursor material of Hu.
On pages 25-26, regarding claim 5, the Applicant argues that the circular air flow or vortex of Althorpe does not teach "establish[ing] rotational flow within the chamber to increase dwell time, facilitate selective removal of larger particles, and promote uniform heating of the precursor" as claimed.
The Examiner disagrees.
The rotational flow or vortex of Althorpe would be expected to increase dwell time, as particles are moving along an unoptimized pathway and would thus be expected to take longer on average to exit the chamber. Furthermore, the vortex would remove larger particles due to art-recognized properties of a vortex, which result in centrifugal filtration of larger particles. Finally, the vortex would be expected to be applied to the thermoviscous precursor, as it is heated within the chamber and thus would be subject to the rotational flow within the chamber.
The Applicant further argues that the prior art does not teach a coordinated wavelength range such that the fused silica exhibits increased absorption of a wavelength band other than the first ultraviolet wavelength band.
The Examiner notes that a coordinated wavelength would be expected upon routine optimization of the fused silica content of Hu. One having ordinary skill in the art would recognize that the first wavelength band would need to be transmitted through the fused silica to heat the thermoviscous precursor and would therefore ensure that the metallic impurities would not block this transmission.
On page 26, regarding claims 19 and 30, the Applicant argues that the prior art does not teach a discrete precursor sampling cell and a discrete vapor sampling cell as claimed. Specifically, the Applicant states that prior art Otiaba does not disclose a precursor sampling cell, as it instead teaches optical analysis on the entire reservoir and that prior art Bessant discloses only a single vapor-side cell and not the precursor cell.
The Examiner disagrees.
Otiaba teaches that the reservoir serves as a sampling cell. The claim does not require that the sampling cell be a separate element that receives a drawn sample from the bulk reservoir. The Examiner maintains that the prior art teaches what is required by the claim language
The following is a modified rejection based on Applicant’s amendments.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 11 is rejected under 35 U.S.C. 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Regarding claim 11, the claim recites “the first ultraviolet wavelength band is selected to overlap an absorption feature associated with the at least one active constituent of the thermoviscous liquid precursor, and the first infrared wavelength band is selected to overlap a vibrational absorption mode associated with the at least one carrier fluid of the thermoviscous liquid precursor”. However, claim 6, upon which claim 11 depends, already requires “the first ultraviolet wavelength band overlapping an electronic absorption feature of at least one active constituent of the thermoviscous liquid precursor and the first infrared wavelength band overlapping a vibrational absorption mode of at least one carrier fluid of the thermoviscous liquid precursor”. Thus, claim 11 does not further limit the subject matter of the claim upon which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 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.
Claims 1, 2, 4, 15-16, 18 and 20-23 are rejected under 35 U.S.C. 103 as being unpatentable over Hu (US 20180140018 A1) in view of Lambert et al. (US 20160138160 A1), Seok (US 20190142071 A1), Liu (US 20160262451 A1) and Bessant (US 20180072487 A1).
Regarding claim 1, Hu teaches a vaporizing device, comprising:
a chamber (air flow grooves 2023, 504; Figs. 4, 6; [0046], [0053]) formed at least in part from a chemically inert fused-silica component (quartz glass body 303, 501; [0037], [0052]) positioned to define at least a portion of a boundary of a precursor-containing region (Figs. 4, 6), wherein the fused-silica component is formed of fused-silica having a hydroxyl (OH) content (fused silica would be expected to have at least a small hydroxyl content);
a heating assembly (heating element 304; [0037]) including an IR emitter ([0022], [0037]) configured to emit infrared radiation, the fused-silica component being arranged to receive the infrared radiation from the IR emitter and to transmit an infrared wavelength band therefrom into the precursor-containing region, the IR emitter being configured to excite vibrational modes of the at least one carrier fluid;
an isolation architecture configured to prevent contact between the heating assembly and airflow, the precursor, generated vapor, and generated aerosol ([0039]); and
wherein the fused-silica component selectively transmits at least one ultraviolet wavelength band and at least one infrared wavelength band to provide optical access to the precursor-containing region, while permitting wavelength-dependent attenuation or absorption of other ultraviolet and infrared wavelength bands (one having ordinary skill in the art would recognize that the content and type of impurities in a fused glass component would provide wavelength-dependent transmission and absorption and thus shape the light radiating therethrough).
Hu does not teach (I) a selected hydroxyl content and metallic impurity content, (II) a UV emitter, (III) one or more optical elements positioned to direct the UV and IR radiation into the chamber, (IV) an optical analysis subsystem configured to acquire spectral data from at least one of a precursor sample and a vapor sample or (V) that the first ultraviolet wavelength band is selected to overlap an absorption feature associated with at least one active constituent of the liquid precursor, and the first infrared wavelength band is selected to overlap a vibrational absorption mode associated with at least one carrier fluid of the liquid precursor.
Regarding (I), Lambert, directed to devices comprising a chamber (chamber 701; Fig. 7B; [0072]), formed at least in part from a chemically inert fused silica component (windows 743, 745), and UV emitters (lamp sets 733, 735) arranged to irradiate a precursor (substrates 713, 715), teaches that the metal impurity content and the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically for UV and IR, respectively ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content and the metal impurity content of the fused silica component of Hu, because Lambert teaches that the impurity content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
Regarding (II), Hu teaches that the heating assembly comprises an IR emitter, but not a UV emitter.
Seok, directed to a vaporizing device (modularized vaporizer 2500; [0058]) comprising a heating assembly (heating module 2300; Fig. 8; [0069]) including a UV emitter arranged to irradiate a precursor ([0014]; [0108]), teaches that a UV laser may be used in combination with an infrared laser to generate aerosol ([0010], [0069]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by adding a UV emitter configured to emit ultraviolet radiation to the heating assembly as taught by Seok because both Hu and Seok are directed to vaporizing devices using IR emitters, Seok teaches that a UV emitter may be used in combination with an IR emitter and one having ordinary skill in the art would recognize that this would enable the device to more efficiently generate aerosol from a broad range of materials, and this involves applying a known teaching to a similar device to yield predictable results.
One having ordinary skill in the art would expect the UV emitter to excite-electron transitions of one or more precursor constituents.
Regarding (III), Hu does not specify how IR light is emitted and directed.
Liu, directed to a vaporizing device (electronic cigarette) comprising a heating assembly including a light emitter (light emitting module 1031; [0013], [0054]) arranged to irradiate a precursor (substrate; [0054]), teaches using lenses (lens 10320) to better direct/converge radiation to the precursor material ([0062]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by using one or more optical elements to direct the UV and IR radiation into the chamber as taught by Liu because both Hu and Liu are directed to vaporizing devices comprising light emitting sources to irradiate precursors, Hu is silent as to the mechanism to direct radiation and one with ordinary skill would be motivated to look to prior art for a known and suitable means to direct radiation, and this involves applying a known teaching to a similar product to yield predictable results.
Regarding (IV), Bessant, directed to a vaporizing device (aerosol generating system 900; [0045], [0091]) comprising a heating assembly (heater element; [0091]), teaches an optical analysis subsystem configured to acquire spectral data from a vapor sample ([0051-0053]). Bessant teaches that this provides information regarding the composition of the vapor ([0050]) in order to control and optimize the performance of the device ([0046], [0056]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by adding the optical analysis subsystem as taught by Bessant because both Hu and Bessant are directed to vaporizing devices, Bessant teaches that an optical analysis subsystem helps optimize the performance of a vaporizing device, and this involves applying a known teaching to a similar device to yield predictable results.
Regarding (V), before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by selecting the first ultraviolet wavelength band to overlap an absorption feature associated with at least one active constituent of the thermoviscous liquid precursor and the first infrared wavelength band to overlap a vibrational absorption mode associated with at least one carrier fluid of the thermoviscous liquid precursor, because one having ordinary skill would recognized that this is how spectral absorption of materials is conducted.
The Examiner notes that the precursor material worked upon in the device would not necessarily change or further limit the structure of the device. Specifically, the claims do not require the presence of a certain precursor material that would limit the composition of the fused silica. Similarly, the way in which the device interacts with a precursor material would not alter the structure of the device itself. The device may be capable of use with any precursor material, but the precursor material would not necessarily change the inherent pre-determined structure of the device.
The Examiner emphasizes that the claim is directed to a product. The limitation of selecting a particular fused silica composition according to a desired precursor material appears to be a product by process limitation attempting to capture the process of making the structure such that it works with a certain precursor. Functional language such as this does not further limit the scope of the claim. The Examiner notes that the Applicant has not claimed a particular precursor nor claimed parameters for the selection/creation of a fused silica composition. As such, the scope of the claim is not further bound by the limitation, as any fused silica content may be applied depending on the desired precursor material. In other words, for any given fused silica composition, the device would be capable of functioning as claimed for some precursor material such that the fused-silica component transmits the first ultraviolet wavelength band and the first infrared wavelength band into the precursor-containing region while permitting wavelength-dependent attenuation of other ultraviolet and infrared wavelength bands, the first ultraviolet wavelength band overlapping an electronic absorption feature of at least one active constituent of a precursor and the first infrared wavelength and overlapping a vibrational absorption mode of at least one carrier fluid of the precursor as claimed.
As previously stated, one having ordinary skill in the art would recognize that to irradiate and heat a precursor material, certain wavelengths would be selected and filtered based on the properties of the precursor material. Lambert teaches that this filtration may be altered by the hydroxyl content and metallic impurity content of the fused silica ([0080]). The Examiner therefore maintains that it would be within the capabilities of one having ordinary skill in the art to select a certain fused silica hydroxyl and metal impurity content to achieve the desired filtering or transmission of wavelengths to appropriately heat the precursor material.
Regarding claim 2, Lambert teaches that the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically for IR radiation ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content of the fused silica component of Hu, including to below 10ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
The Examiner notes that the claimed process to obtain the fused silica component, such that “the fused-silica component is fabricated using a water-vapor-free plasma flame process”, constitutes a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP § 2113 (I).
Regarding claim 4, Lambert teaches that the metallic impurity content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically for UV radiation ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the metallic impurity content of the fused silica component of Hu, including to 1ppm or less, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
The Examiner notes that the claimed process to obtain the fused silica component, such that “the fused-silica component is fabricated by flame hydrolyzation of silicon tetrachloride”, constitutes a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP § 2113 (I).
Regarding claim 15, Hu teaches a vaporizing device, comprising:
an isolation system configured to prevent contact between the heating assembly and airflow, the precursor, generated vapor, and generated aerosol ([0039]);
a chemically inert fused-silica optical component (quartz glass body 303, 501; [0037], [0052]) positioned to define at least a portion of a boundary of a precursor-containing region (Figs. 4, 6), wherein the fused-silica component is formed of fused silica having a hydroxyl (OH) content (fused silica would be expected to have at least a small hydroxyl content);
the fused-silica component being configured to selectively transmit at least one ultraviolet wavelength band and at least one infrared wavelength band to provide optical access to the precursor-containing region, while permitting wavelength-dependent attenuation or absorption of other ultraviolet and infrared wavelength bands (one having ordinary skill in the art would recognize that the content and type of impurities in a fused glass component would provide wavelength-dependent transmission and absorption and thus shape the light radiating therethrough) and while maintaining physical separation between the heating assembly and the precursor-containing region ([0039]).
a heating assembly (heating element 304; [0037]) including an IR emitter ([0022], [0037]) arranged to deliver optical irradiation into the precursor containing region, the IR emitter being configured to excite vibrational modes of one or more precursor constituents; and
a chamber (air flow grooves 2023, 504; Figs. 4, 6; [0046], [0053]) configured to receive a thermoviscous liquid precursor (tobacco liquid) in the precursor-containing region and to generate at least one of a vapor and an aerosol therefrom ([0043]).
Hu does not teach (I) an optical analysis subsystem configured to acquire spectral data from at least one of a precursor sample and a vapor sample, (II) a predetermined metallic impurity content, (III) a UV emitter, (IV) at least one optical element positioned to direct the UV and IR radiation into the chamber or (V) that the first ultraviolet wavelength band is selected to overlap an absorption feature associated with at least one active constituent of the liquid precursor, and the first infrared wavelength band is selected to overlap a vibrational absorption mode associated with at least one carrier fluid of the liquid precursor.
Regarding (I), Bessant, directed to a vaporizing device (aerosol generating system 900; [0045], [0091]) comprising a heating assembly (heater element; [0091]), teaches an optical analysis subsystem configured to acquire spectral data from a vapor sample ([0051-0053]) and to determine, based on the spectral data, at least one property associated with reaction complex ([0050] teaches determining composition, which may be considered a property associated with reaction complex). Bessant teaches that this provides information regarding the composition of the vapor ([0050]) in order to control and optimize the performance of the device ([0046], [0056]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by adding the optical analysis subsystem as taught by Bessant such that the optical analysis subsystem is configured to acquire the spectral data while the precursor-containing region is optically irradiated because both Hu and Bessant are directed to vaporizing devices, Bessant teaches that an optical analysis subsystem helps optimize the performance of a vaporizing device, and this involves applying a known teaching to a similar device to yield predictable results.
Regarding (II), Lambert, directed to devices comprising a chamber (chamber 701; Fig. 7B; [0072]), formed at least in part from a chemically inert fused silica component (windows 743, 745), and UV emitters (lamp sets 733, 735) arranged to irradiate a precursor (substrates 713, 715), teaches that the metal impurity content and the water content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically for UV and IR, respectively ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the metal impurity content of the fused silica component of Hu, because Lambert teaches that the impurity content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
Regarding (III), Hu teaches that the heating assembly comprises an IR emitter, but not a UV emitter.
Seok, directed to a vaporizing device (modularized vaporizer 2500; [0058]) comprising a heating assembly (heating module 2300; Fig. 8; [0069]) including a UV emitter arranged to irradiate a precursor ([0014]; [0108]), teaches that a UV laser may be used in combination with an infrared laser to generate aerosol ([0010], [0069]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by adding a UV emitter to the heating assembly as taught by Seok because both Hu and Seok are directed to vaporizing devices using IR emitters, Seok teaches that a UV emitter may be used in combination with an IR emitter and one having ordinary skill in the art would recognize that this would enable the device to more efficiently generate aerosol from a broad range of materials, and this involves applying a known teaching to a similar device to yield predictable results.
One having ordinary skill in the art would expect the UV emitter to excite-electron transitions of one or more precursor constituents.
Regarding (IV), Hu does not specify how light is emitted and directed.
Liu, directed to a vaporizing device (electronic cigarette) comprising a heating assembly including a light emitter (light emitting module 1031; [0013], [0054]) arranged to irradiate a precursor (substrate; [0054]), teaches using lenses (lens 10320) to better couple radiation into the precursor material ([0062]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by using at least one optical element to couple the UV and IR radiation into the fused silica component and to the optical analysis subsystem as taught by Liu because both Hu and Liu are directed to vaporizing devices comprising light emitting sources to irradiate precursors, Hu is silent as to the mechanism to direct radiation and one with ordinary skill would be motivated to look to prior art for a known and suitable means to direct radiation, and this involves applying a known teaching to a similar product to yield predictable results.
Regarding (V), before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by selecting the first ultraviolet wavelength band to overlap an absorption feature associated with at least one active constituent of the thermoviscous liquid precursor and the first infrared wavelength band to overlap a vibrational absorption mode associated with at least one carrier fluid of the thermoviscous liquid precursor, because one having ordinary skill would recognized that this is how spectral absorption of materials is conducted.
The Examiner notes that the precursor material worked upon in the device would not necessarily change or further limit the structure of the device. Specifically, the claims do not require the presence of a certain precursor material that would limit the composition of the fused silica. Similarly, the way in which the device interacts with a precursor material would not alter the structure of the device itself. The device may be capable of use with any precursor material, but the precursor material would not necessarily change the inherent pre-determined structure of the device.
The Examiner emphasizes that the claim is directed to a product. The limitation of selecting a particular fused silica composition according to a desired precursor material appears to be a product by process limitation attempting to capture the process of making the structure such that it works with a certain precursor. Functional language such as this does not further limit the scope of the claim. The Examiner notes that the Applicant has not claimed a particular precursor nor claimed parameters for the selection/creation of a fused silica composition. As such, the scope of the claim is not further bound by the limitation, as any fused silica content may be applied depending on the desired precursor material. In other words, for any given fused silica composition, the device would be capable of functioning as claimed for some precursor material such that the fused-silica component transmits the first ultraviolet wavelength band and the first infrared wavelength band into the precursor-containing region while permitting wavelength-dependent attenuation of other ultraviolet and infrared wavelength bands, the first ultraviolet wavelength band overlapping an electronic absorption feature of at least one active constituent of a precursor and the first infrared wavelength and overlapping a vibrational absorption mode of at least one carrier fluid of the precursor as claimed.
As previously stated, one having ordinary skill in the art would recognize that to irradiate and heat a precursor material, certain wavelengths would be selected and filtered based on the properties of the precursor material. Lambert teaches that this filtration may be altered by the hydroxyl content and metallic impurity content of the fused silica ([0080]). The Examiner therefore maintains that it would be within the capabilities of one having ordinary skill in the art to select a certain fused silica hydroxyl and metal impurity content to achieve the desired filtering or transmission of wavelengths to appropriately heat the precursor material.
Regarding claim 16, Lambert teaches that the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize IR radiation transmission ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content of the fused silica component of Hu, including to below 10ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
Regarding claim 18, Hu and Seok do not explicitly disclose the emission wavelength of the IR emitter and the UV emitter, respectively.
However, it would be obvious to one having ordinary skill that a UV emitter be capable of producing an emission in the first ultraviolet wavelength band within 200-350 nm, as this overlaps with the wavelength range for UV light, 100-400 nm, and would therefore be prima facie obvious. It would be obvious to one having ordinary skill that an IR emitter be capable of producing an emission in the first infrared wavelength band within 700-3700 nm, as this overlaps with the wavelength range for IR light, 700-10,000 nm, and would therefore be prima facie obvious.
It would further be obvious for one having ordinary skill in the art to modify Hu by selecting the first ultraviolet wavelength and the first infrared wavelength to each overlap an absorption feature associated with at least one active constituent of the thermoviscous liquid precursor, because one having ordinary skill would recognize that this is how spectral identification of materials is conducted.
Regarding claim 20, Lambert teaches that the metallic impurity content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize UV radiation transmission ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the metallic impurity content of the fused silica component of Hu, including to 1ppm or less, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
Regarding claim 21, Hu teaches that the fused-silica optical component is configured to selectively transmit the first ultraviolet wavelength band and the first infrared wavelength band while attenuating transmission of the second ultraviolet wavelength band and the second infrared wavelength band, such that optical irradiation delivered to the precursor is spectrally shaped by the fused-silica optical component (one having ordinary skill in the art would recognize that the content and type of impurities in a fused glass component would provide wavelength-dependent transmission and absorption and thus spectrally shape the light radiating therethrough).
Regarding claim 22, Lambert teaches that the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically for IR radiation ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content of the fused silica component of Hu, including to below 10ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
The Examiner notes that the claimed process to obtain the fused silica component, such that “the fused-silica component is fabricated using a water-vapor-free plasma flame process”, constitutes a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP § 2113 (I).
Regarding claim 23, Hu does not explicitly teach that the fused silica component includes metallic impurities in a concentration between 1 ppm and 50 ppm.
Lambert teaches that the metallic impurity content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize the transmission of UV radiation ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the metallic impurity content of the fused silica component of Hu, including to between 1ppm and 50ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
The Examiner notes that one having ordinary skill in the art would recognize that multiple different wavelengths may be associated with an absorption by the precursor. It would therefore be obvious to optimize increased infrared absorption of a wavelength band other than the first infrared wavelength band. Furthermore, it would be expected that for any given fused silica composition, there exists a precursor material that may be used with the device to achieve the claimed function.
Claims 3 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Hu, Lambert, Seok, Liu and Bessant as applied to claims 1 and 15 above, or in the alternative, further in view of Yamagata et al. (US 5325230 A).
Regarding claim 3, Lambert teaches that the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically for IR radiation ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content of the fused silica component of Hu, including to between 10ppm and 1000ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
The Examiner notes that the claimed process to obtain the fused silica component, such that “the fused-silica component is fabricated using a flame fusion process”, constitutes a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP § 2113 (I).
In the alternative, Yamagata, directed to a fused silica composition (Abstract), teaches that a hydroxyl content of at least about 50ppm reduces degradation from UV light (col. 6, lines 3-13).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by making the fused silica with a hydroxyl content of at least about 50ppm as taught by Yamagata because Hu is directed to a device using a fused silica component and Yamagata is directed to fused silica, Yamagata teaches that this hydroxyl content is known to reduce UV degradation of fused silica, and this involves applying a known teaching to a similar fused silica element to yield predictable results.
The claimed range of between 10ppm and 1000ppm overlaps the range taught by the prior art (at least about 50ppm) and is therefore prima facie obvious.
The Examiner notes that one having ordinary skill in the art would recognize that multiple different wavelengths may be associated with an absorption by the precursor. It would therefore be obvious to optimize increased infrared absorption of a wavelength band other than the first infrared wavelength band. Furthermore, it would be expected that for any given fused silica composition, there exists a precursor material that may be used with the device to achieve the claimed function.
Regarding claim 17, Lambert teaches that the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize the transmission of IR radiation ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content of the fused silica component of Hu, including to between 10ppm and 1000ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
The Examiner notes that the claimed process to obtain the fused silica component, such that “the fused-silica component is fabricated using a flame fusion process”, constitutes a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP § 2113 (I).
In the alternative, Yamagata, directed to a fused silica composition (Abstract), teaches that a hydroxyl content of at least about 50ppm reduces degradation from UV light (col. 6, lines 3-13).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by making the fused silica with a hydroxyl content of at least about 50ppm as taught by Yamagata because Hu is directed to a device using a fused silica component and Yamagata is directed to fused silica, Yamagata teaches that this hydroxyl content is known to reduce UV degradation of fused silica, and this involves applying a known teaching to a similar fused silica element to yield predictable results.
The claimed range of between 10ppm and 1000ppm overlaps the range taught by the prior art (at least about 50ppm) and is therefore prima facie obvious.
The Examiner notes that one having ordinary skill in the art would recognize that multiple different wavelengths may be associated with an absorption by the precursor. It would therefore be obvious to optimize increased infrared absorption of a wavelength band other than the first infrared wavelength band. Furthermore, it would be expected that for any given fused silica composition, there exists a precursor material that may be used with the device to achieve the claimed function.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Hu, Lambert, Seok, Liu and Bessant as applied to claim 1 above and further in view of Althorpe et al. (US 20170367407 A1).
Regarding claim 5, Hu does not explicitly teach (I) a flow director in the chamber, configured to establish rotational flow or (II) that the fused silica component includes metallic impurities in a concentration between 1 ppm and 50 ppm.
Regarding (I), Althorpe, directed to a vaporizing device (electronic nicotine delivery system 10; [0040]) comprising a chamber (vaporization chamber 26; [0044]) and a heating assembly (electric heater 14; [0040]) configured to heat a precursor (nicotine solution) ([0044]), teaches that the device comprises a flow director (air inlet passages 52; [0074]) in the chamber that is configured to establish rotational flow within the chamber to increase dwell time, facilitate selective removal of larger particles (as would be expected by one having ordinary skill) and promote uniform heating of the thermoviscous precursor ([0074]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by adding the flow director as taught by Althorpe because both Hu and Althorpe are directed to vaporizing devices, Althorpe teaches that a flow director may establish rotational flow to establish more uniform vapor, and this involves applying a known teaching to a similar device to yield predictable results.
Regarding (II), Lambert teaches that the metallic impurity content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically for UV radiation ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the metallic impurity content of the fused silica component of Hu, including to between 1ppm and 50ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
The Examiner notes that one having ordinary skill in the art would recognize that multiple different wavelengths may be associated with an absorption by the precursor. It would therefore be obvious to optimize increased infrared absorption of a wavelength band other than the first infrared wavelength band. Furthermore, it would be expected that for any given fused silica composition, there exists a precursor material that may be used with the device to achieve the claimed function.
Claims 6-7, 9-14 are rejected under 35 U.S.C. 103 as being unpatentable over Hu (US 20180140018 A1) in view of Lambert et al. (US 20160138160 A1), Seok (US 20190142071 A1) and Liu (US 20160262451 A1).
Regarding claim 6, Hu teaches a vaporizing device, comprising:
a chamber (air flow grooves 2023, 504; Figs. 4, 6; [0046], [0053]) configured to receive a thermoviscous liquid precursor (tobacco liquid) and to generate at least one of a vapor and an aerosol therefrom ([0043]), wherein the chamber includes a chemically inert fused-silica optical component component (quartz glass body 303, 501; [0037], [0052]) positioned to define at least a portion of a boundary of a precursor-containing region (Figs. 4, 6), wherein the fused-silica component is formed of fused-silica having a hydroxyl (OH) content (fused silica would be expected to have at least a small hydroxyl content);
a heating assembly (heating element 304; [0037]) including an IR emitter ([0022], [0037]) arranged to irradiate precursor within the chamber through the fused-silica component, IR emitter being configured to excite vibrational modes of one or more precursor constituents (one having ordinary skill would recognize that this is how an infrared emitter would interact with a precursor to heat the precursor); and
an isolation architecture configured to prevent contact between the heating assembly and the thermoviscous liquid precursor, intake air, generated vapor, and generated aerosol, wherein the isolation architecture comprises at least one fused-silica barrier interposed between the heating assembly and the precursor-containing region such that optical irradiation is delivered to the precursor while the heating assembly remains physically separated from the thermoviscous liquid precursor, intake air, generated vapor, and generated aerosol ([0039]).
Hu does not teach (I) a predetermined hydroxyl and metallic impurity content, (II) a UV emitter, (III) at least one optical element positioned to couple radiation from the UV and IR emitters into the fused-silica optical component and direct the radiation into the precursor-containing region or (IV) that the first ultraviolet wavelength band is selected to overlap an absorption feature associated with at least one active constituent of the liquid precursor, and the first infrared wavelength band is selected to overlap a vibrational absorption mode associated with at least one carrier fluid of the liquid precursor.
Regarding (I), Lambert, directed to devices comprising a chamber (chamber 701; Fig. 7B; [0072]), formed at least in part from a chemically inert fused silica component (windows 743, 745), and UV emitters (lamp sets 733, 735) arranged to irradiate a precursor (substrates 713, 715), teaches that the metal impurity content and the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically for UV and IR, respectively ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content and the metal impurity content of the fused silica component of Hu, because Lambert teaches that the impurity content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
Regarding (II), Hu teaches that the heating assembly comprises an IR emitter, but not a UV emitter.
Seok, directed to a vaporizing device (modularized vaporizer 2500; [0058]) comprising a heating assembly (heating module 2300; Fig. 8; [0069]) including a UV emitter arranged to irradiate a precursor ([0014]; [0108]), teaches that a UV laser may be used in combination with an infrared laser to generate aerosol ([0010], [0069]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by adding a UV emitter to the heating assembly as taught by Seok because both Hu and Seok are directed to vaporizing devices using IR emitters, Seok teaches that a UV emitter may be used in combination with an IR emitter and one having ordinary skill in the art would recognize that this would enable the device to more efficiently generate aerosol from a broad range of materials, and this involves applying a known teaching to a similar device to yield predictable results.
One having ordinary skill in the art would expect the UV emitter to excite-electron transitions of one or more precursor constituents.
Regarding (III), Hu does not specify how IR light is emitted and directed.
Liu, directed to a vaporizing device (electronic cigarette) comprising a heating assembly including a light emitter (light emitting module 1031; [0013], [0054]) arranged to irradiate a precursor (substrate; [0054]), teaches using lenses (lens 10320) to better direct/converge radiation to the precursor material ([0062]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by using at least one optical element to couple and direct the UV and IR radiation into the fused-silica optical component and into the precursor-containing region as taught by Liu because both Hu and Liu are directed to vaporizing devices comprising light emitting sources to irradiate precursors, Hu is silent as to the mechanism to direct radiation and one with ordinary skill would be motivated to look to prior art for a known and suitable means to direct radiation, and this involves applying a known teaching to a similar product to yield predictable results.
Regarding (IV), before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by selecting the first ultraviolet wavelength band to overlap an absorption feature associated with at least one active constituent of the thermoviscous liquid precursor and the first infrared wavelength band to overlap a vibrational absorption mode associated with at least one carrier fluid of the thermoviscous liquid precursor, because one having ordinary skill would recognized that this is how spectral absorption of materials is conducted.
The Examiner notes that the precursor material worked upon in the device would not necessarily change or further limit the structure of the device. Specifically, the claims do not require the presence of a certain precursor material that would limit the composition of the fused silica. Similarly, the way in which the device interacts with a precursor material would not alter the structure of the device itself. The device may be capable of use with any precursor material, but the precursor material would not necessarily change the inherent pre-determined structure of the device.
The Examiner emphasizes that the claim is directed to a product. The limitation of selecting a particular fused silica composition according to a desired precursor material appears to be a product by process limitation attempting to capture the process of making the structure such that it works with a certain precursor. Functional language such as this does not further limit the scope of the claim. The Examiner notes that the Applicant has not claimed a particular precursor nor claimed parameters for the selection/creation of a fused silica composition. As such, the scope of the claim is not further bound by the limitation, as any fused silica content may be applied depending on the desired precursor material. In other words, for any given fused silica composition, the device would be capable of functioning as claimed for some precursor material such that the fused-silica component transmits the first ultraviolet wavelength band and the first infrared wavelength band into the precursor-containing region while permitting wavelength-dependent attenuation of other ultraviolet and infrared wavelength bands, the first ultraviolet wavelength band overlapping an electronic absorption feature of at least one active constituent of a precursor and the first infrared wavelength and overlapping a vibrational absorption mode of at least one carrier fluid of the precursor as claimed.
As previously stated, one having ordinary skill in the art would recognize that to irradiate and heat a precursor material, certain wavelengths would be selected and filtered based on the properties of the precursor material. Lambert teaches that this filtration may be altered by the hydroxyl content and metallic impurity content of the fused silica ([0080]). The Examiner therefore maintains that it would be within the capabilities of one having ordinary skill in the art to select a certain fused silica hydroxyl and metal impurity content to achieve the desired filtering or transmission of wavelengths to appropriately heat the precursor material.
Regarding claim 7, Hu teaches that the fused-silica optical component is configured to transmit a first ultraviolet wavelength band and a first infrared wavelength band while attenuating transmission of the second ultraviolet wavelength band and the second infrared wavelength band, such that optical energy delivered to the precursor is spectrally shaped by the fused-silica optical component (one having ordinary skill in the art would recognize that the content and type of impurities in a fused glass component would provide wavelength-dependent transmission and absorption and thus spectrally shape the light radiating therethrough).
Regarding claim 9, Hu teaches that the isolation architecture further comprises a sealed cavity separating the heating assembly from the precursor-containing region, the sealed cavity being bounded at least in part by the fused-silica barrier ([0039]).
Regarding claim 10, Hu does not explicitly teach that the fused silica component includes metallic impurities in a concentration between 1 ppm and 50 ppm.
Lambert teaches that the metallic impurity content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize the transmission of UV radiation ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the metallic impurity content of the fused silica component of Hu, including to between 1ppm and 50ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
The Examiner notes that one having ordinary skill in the art would recognize that multiple different wavelengths may be associated with an absorption by the precursor. It would therefore be obvious to optimize increased infrared absorption of a wavelength band other than the first infrared wavelength band. Furthermore, it would be expected that for any given fused silica composition, there exists a precursor material that may be used with the device to achieve the claimed function.
Regarding claim 11, Hu does not explicitly teach that the first ultraviolet wavelength band is selected to overlap an absorption feature associated with the at least one active constituent of the thermoviscous liquid precursor, and the first infrared wavelength band is selected to overlap a vibrational absorption mode associated with at least one carrier fluid of the thermoviscous liquid precursor.
However, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by selecting the first ultraviolet wavelength band to overlap an absorption feature associated with at least one active constituent of the thermoviscous liquid precursor and the first infrared wavelength band to overlap a vibrational absorption mode associated with at least one carrier fluid of the thermoviscous liquid precursor, because one having ordinary skill would recognized that this is how spectral absorption of materials is conducted.
Regarding claim 12, Lambert teaches that the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize IR radiation transmission ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content of the fused silica component of Hu, including to below 10ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
Regarding claim 13, Lambert teaches that the metallic impurity content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize UV radiation transmission ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the metallic impurity content of the fused silica component of Hu, including to 1ppm or less, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
Regarding claim 14, Hu teaches that operation of the UV emitter and the IR emitter is coordinated with operation of a heating assembly such that optical irradiation is applied during vaporization (the emitters of modified Hu are part of the heating assembly, as required by claim 6, and thus would be expected to be coordinated with the heating assembly) to reduce peak temperatures associated with thermal degradation of the thermoviscous liquid precursor.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Hu, Lambert, Seok and Liu as applied to claim 6 above, or in the alternative, further in view of Yamagata et al. (US 5325230 A).
Regarding claim 8, Lambert teaches that the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize the transmission of IR radiation ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content of the fused silica component of Hu, including to between 10ppm and 1000ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
The Examiner notes that the claimed process to obtain the fused silica component, such that “the fused-silica component is fabricated using a flame fusion process”, constitutes a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP § 2113 (I).
In the alternative, Yamagata, directed to a fused silica composition (Abstract), teaches that a hydroxyl content of at least about 50ppm reduces degradation from UV light (col. 6, lines 3-13).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by making the fused silica with a hydroxyl content of at least about 50ppm as taught by Yamagata because Hu is directed to a device using a fused silica component and Yamagata is directed to fused silica, Yamagata teaches that this hydroxyl content is known to reduce UV degradation of fused silica, and this involves applying a known teaching to a similar fused silica element to yield predictable results.
The claimed range of between 10ppm and 1000ppm overlaps the range taught by the prior art (at least about 50ppm) and is therefore prima facie obvious.
The Examiner notes that one having ordinary skill in the art would recognize that multiple different wavelengths may be associated with an absorption by the precursor. It would therefore be obvious to optimize increased infrared absorption of a wavelength band other than the first infrared wavelength band. Furthermore, it would be expected that for any given fused silica composition, there exists a precursor material that may be used with the device to achieve the claimed function.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Hu, Lambert, Seok, Liu and Bessant as applied to claims 1 and 15 above, and further in view of Otiaba et al. (US 20200352245 A).
Regarding claim 19, modified Hu teaches that the optical analysis subsystem comprises a vapor sampling cell configured to receive a sample of at least one of the generated vapor and the generated aerosol (see Bessant [0050-053]).
Modified Hu does not explicitly teach that the optical analysis subsystem comprises a dual-cell sampling arrangement including a precursor sampling cell configured to receive a sample of the thermoviscous liquid precursor.
Otiaba, directed to a vaporizing device (e-cigarette 100; [0035]) comprising an optical analysis subsystem ([0044]) configured to acquire spectral data associated with at least one of a thermoviscous liquid precursor present in a precursor-containing region (reservoir 21; [0035]), and a heating assembly (heater 22; [0035]), teaches a precursor sampling cell configured to receive a sample of the thermoviscous precursor ([0044-0046]) to better control the device ([0091]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the optical analysis subsystem of Hu by adding a precursor sampling cell as taught by Otiaba because both Hu and Otiaba are directed to vaporizing devices comprising optical analysis subsystems, Otiaba teaches an additional analysis component to better control the device, and this involves applying a known teaching to a similar device to yield predictable results.
Claims 24-25 and 27-28 are rejected under 35 U.S.C. 103 as being unpatentable over Hu (US 20180140018 A1) in view of Lambert et al. (US 20160138160 A1), Seok (US 20190142071 A1) and Otiaba et al. (US 20200352245 A).
Regarding claim 24, Hu teaches a vaporizing device, comprising:
a chemically inert fused-silica structure (quartz glass body 303, 501; [0037], [0052]) positioned to physically separate contaminant containing components from the precursor-containing region ([0039]), wherein the fused-silica component is formed of fused silica having a hydroxyl (OH) content (fused silica would be expected to have at least a small hydroxyl content);
a chamber (air flow grooves 2023, 504; Figs. 4, 6; [0046], [0053]) defining the precursor-containing region (Figs. 4, 6) and configured to receive a thermoviscous liquid precursor (tobacco liquid) and to generate at least one of a vapor and an aerosol therefrom ([0043]);
a radiation source assembly (heating element 304; [0037]) including an IR emitter ([0022], [0037]) arranged to deliver optical irradiation through the fused-silica structure into the precursor containing region, the delivered optical radiation being selected to interact with electronic transitions of the at least one active constituent and vibrational modes of the at least one carrier fluid of the thermoviscous liquid precursor (one having ordinary skill in the art would expect the IR emitter to interact with vibrational states of at least one precursor constituent); and
an isolation system configured to prevent contact between the heating assembly and airflow, the precursor, generated vapor, and generated aerosol ([0039]).
Hu does not teach (I) an optical analysis subsystem configured to interact with a thermoviscous liquid precursor using optical radiation in at least one of an ultraviolet (UV) wavelength range and an infrared (IR) wavelength range, (II) a predetermined metallic impurity content, (III) a UV emitter, or (IV) that the first ultraviolet wavelength band is selected to overlap an absorption feature associated with at least one active constituent of the liquid precursor, and the first infrared wavelength band is selected to overlap a vibrational absorption mode associated with at least one carrier fluid of the liquid precursor.
Regarding (I), Otiaba, directed to a vaporizing device (e-cigarette 100; [0035]) comprising a heating assembly (heater 22; [0035]), teaches an optical analysis subsystem ([0044]) configured to interact with a thermoviscous liquid precursor using optical radiation in at least one of an ultraviolet (UV) wavelength range and an infrared (IR) wavelength range ([0043]). Otiaba teaches that this optical analysis subsystem may help to better control the device ([0091]). Otiaba further teaches that the system may be configured to be optically coupled with the precursor through a transparent window of appropriate material ([0045]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by adding the optical analysis subsystem as taught by Otiaba because both Hu and Otiaba are directed to vaporizing devices, Otiaba teaches an optical analysis subsystem to better control the device, and this involves applying a known teaching to a similar device to yield predictable results.
It would be obvious to one having ordinary skill that the fused-silica structure may be positioned to optically couple the optical subsystem with the pre-cursor containing region.
Regarding (II), Lambert, directed to devices comprising a chamber (chamber 701; Fig. 7B; [0072]), formed at least in part from a chemically inert fused silica component (windows 743, 745), and UV emitters (lamp sets 733, 735) arranged to irradiate a precursor (substrates 713, 715), teaches that the metal impurity content and the water content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically for UV and IR, respectively ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the metal impurity content of the fused silica component of Hu, because Lambert teaches that the impurity content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
Regarding (III), Hu teaches that the radiation source assembly comprises an IR emitter, but not a UV emitter.
Seok, directed to a vaporizing device (modularized vaporizer 2500; [0058]) comprising a heating assembly (heating module 2300; Fig. 8; [0069]) including a UV emitter arranged to irradiate a precursor ([0014]; [0108]), teaches that a UV laser may be used in combination with an infrared laser to generate aerosol ([0010], [0069]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by adding a UV emitter to the radiation source assembly as taught by Seok because both Hu and Seok are directed to vaporizing devices using IR emitters, Seok teaches that a UV emitter may be used in combination with an IR emitter and one having ordinary skill in the art would recognize that this would enable the device to more efficiently generate aerosol from a broad range of materials, and this involves applying a known teaching to a similar device to yield predictable results.
Regarding (IV), before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by selecting the first ultraviolet wavelength band to overlap an absorption feature associated with at least one active constituent of the thermoviscous liquid precursor and the first infrared wavelength band to overlap a vibrational absorption mode associated with at least one carrier fluid of the thermoviscous liquid precursor, because one having ordinary skill would recognized that this is how spectral absorption of materials is conducted.
The Examiner notes that the precursor material worked upon in the device would not necessarily change or further limit the structure of the device. Specifically, the claims do not require the presence of a certain precursor material that would limit the composition of the fused silica. Similarly, the way in which the device interacts with a precursor material would not alter the structure of the device itself. The device may be capable of use with any precursor material, but the precursor material would not necessarily change the inherent pre-determined structure of the device.
The Examiner emphasizes that the claim is directed to a product. The limitation of selecting a particular fused silica composition according to a desired precursor material appears to be a product by process limitation attempting to capture the process of making the structure such that it works with a certain precursor. Functional language such as this does not further limit the scope of the claim. The Examiner notes that the Applicant has not claimed a particular precursor nor claimed parameters for the selection/creation of a fused silica composition. As such, the scope of the claim is not further bound by the limitation, as any fused silica content may be applied depending on the desired precursor material. In other words, for any given fused silica composition, the device would be capable of functioning as claimed for some precursor material such that the fused-silica component transmits the first ultraviolet wavelength band and the first infrared wavelength band into the precursor-containing region while permitting wavelength-dependent attenuation of other ultraviolet and infrared wavelength bands, the first ultraviolet wavelength band overlapping an electronic absorption feature of at least one active constituent of a precursor and the first infrared wavelength and overlapping a vibrational absorption mode of at least one carrier fluid of the precursor as claimed.
As previously stated, one having ordinary skill in the art would recognize that to irradiate and heat a precursor material, certain wavelengths would be selected and filtered based on the properties of the precursor material. Lambert teaches that this filtration may be altered by the hydroxyl content and metallic impurity content of the fused silica ([0080]). The Examiner therefore maintains that it would be within the capabilities of one having ordinary skill in the art to select a certain fused silica hydroxyl and metal impurity content to achieve the desired filtering or transmission of wavelengths to appropriately heat the precursor material.
Regarding claim 25, Lambert teaches that the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize IR radiation transmission ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content of the fused silica component of Hu, including to below 10ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
Regarding claim 27, Lambert teaches that the metallic impurity content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize UV radiation transmission ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the metallic impurity content of the fused silica component of Hu, including to 1ppm or less, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
Regarding claim 28, Hu teaches that the fused-silica optical component is configured to selectively transmit the first ultraviolet wavelength band and the first infrared wavelength band into the precursor-containing region while attenuating transmission of at least one other ultraviolet or infrared wavelength band (one having ordinary skill in the art would recognize that the content and type of impurities in a fused glass component would provide wavelength-dependent transmission and absorption and thus spectrally shape the light radiating therethrough).
Regarding claim 29, Otiaba teaches that the optical subsystem comprises an optical analysis subsystem is configured to acquire spectral data associated with the thermoviscous liquid precursor through the fused-silica structure ([0043-0045]).
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Hu, Lambert, Seok and Otiaba as applied to claim 24 above, or in the alternative, further in view of Yamagata et al. (US 5325230 A).
Regarding claim 26, Lambert teaches that the hydroxyl content of the fused-silica component may be varied to block/filter undesired wavelengths, specifically to optimize the transmission of IR radiation ([0080]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the hydroxyl content of the fused silica component of Hu, including to between 10ppm and 1000ppm, because Lambert teaches that the hydroxyl content of fused silica is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to better filter out undesirable wavelengths and better target the desired precursor, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II).
The Examiner notes that the claimed process to obtain the fused silica component, such that “the fused-silica component is fabricated using a flame fusion process”, constitutes a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP § 2113 (I).
In the alternative, Yamagata, directed to a fused silica composition (Abstract), teaches that a hydroxyl content of at least about 50ppm reduces degradation from UV light (col. 6, lines 3-13).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Hu by making the fused silica with a hydroxyl content of at least about 50ppm as taught by Yamagata because Hu is directed to a device using a fused silica component and Yamagata is directed to fused silica, Yamagata teaches that this hydroxyl content is known to reduce UV degradation of fused silica, and this involves applying a known teaching to a similar fused silica element to yield predictable results.
The claimed range of between 10ppm and 1000ppm overlaps the range taught by the prior art (at least about 50ppm) and is therefore prima facie obvious.
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Hu, Lambert, Seok and Otiaba as applied to claim 29 above, and further in view of Bessant (US 20180072487 A1).
Regarding claim 30, modified Hu teaches that the optical analysis subsystem comprises an arrangement including a precursor sampling cell configured to receive a sample of the thermoviscous liquid precursor (see Otiaba [0043-0045]).
Modified Hu does not teach that the optical analysis subsystem comprises a vapor sampling cell configured to receive a sample of at least one of the generated vapor and the generated aerosol.
Bessant, directed to a vaporizing device (aerosol generating system 900; [0045], [0091]) comprising a heating assembly (heater element; [0091]), teaches an optical analysis subsystem configured to acquire spectral data from a vapor sample ([0051-0053]). Bessant teaches that this provides information regarding the composition of the vapor ([0050]) in order to control and optimize the performance of the device ([0046], [0056]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the optical analysis subsystem of Hu by adding the vapor sampling analysis system as taught by Bessant to form a dual-cell sampling arrangement because both Hu and Bessant are directed to vaporizing devices, Bessant teaches an additional aspect of an optical analysis subsystem that helps optimize the performance of a vaporizing device, and this involves applying a known teaching to a similar device to yield predictable results.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/C.D./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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