DETAILED ACTION
Response to Arguments
Applicant's arguments filed 8/24/2026 have been fully considered but they are not persuasive.
Applicant argues “Egoyants discloses a heater comprising "a plurality of independently controllable heating regions arranged sequentially along a longitudinal axis of the heater" with a controller configured to activate those regions sequentially. Egoyants, claim 1 and claims 18-19 (emphasis added). Egoyants further explains that "a fresh section of smokeable material may be heated to volatilize nicotine and aromatic compounds for each new puff," and that "the heating regions may alternatively be activated sequentially, one after the other, in response to a single, initial puff." Egoyants, describing the heating method of Figure 10. Egoyants' regions are thus activated sequentially, one after the other, puff by puff, and not simultaneously as claimed.” The Examiner disagrees. Egoyants teaches during full activation of a particular heating region 10, one or more of the other heating regions 10 may be partially activated [page 15, l. 25-27]. Egoyants also teaches in a third operational mode, once a particular heating region 10 has been activated, it remains fully activated until the heater 3 is switched off [page 16, l. 4-5]. Thus, Egoyants does disclose simultaneous heating as claimed.
Applicant argues “Day teaches sensing surface topography of external coding features that contact or approach the sensor and fails to teach sensing an electrically conductive region disposed internally to the article across a non-conductive gap.” The Examiner disagrees. "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). The article of smokable material is not a positively recited limitation. Therefore, the presence of an electrically conductive region disposed internally to the article of smokable material and a non-conductive gap associated therewith is not required by the apparatus. The electrical sensor, as described in claim 17 and the instant specification, may comprise capacitance sensing electrodes. Day teaches the sensor comprises capacitance sensing electrodes. The sensor of Day is thereby interpreted as capable of being used in the claimed manner.
Applicant argues “the Examiner's reliance on MPEP § 2144.06 and the "art recognized equivalents" rationale cannot supply the recited combination of limitations in amended claim 1. MPEP § 2144.06 addresses combining or substituting equivalents known for the same purpose, but amended claim 1 requires a specific division of labor between the electrical sensor and the optical sensor. The electrical sensor senses an electrically conductive region disposed internally to the article across a non-conductive gap, and the optical sensor senses an indicium arranged externally of the article. The sensors operate together with electrical control circuitry following two different heating patterns, the pattern followed depending on which type of article of smokable material the sensor arrangement identifies, in each of which the plurality of zones are heated simultaneously. The rationale that equivalents may be combined does not establish that the prior art teaches the specific structural and functional cooperation between the two as recited in amended claim 1. Moreover, the Examiner's approach fails to address the heating-pattern feature of the amended claim, which none of the cited references discloses.” The Examiner disagrees. The combination with Egoyants teaches the heating zone and heating pattern arrangement of the amended claim depending on which type of article the sensor arrangement identifies. As both sensors are known in the art for the same purpose of identifying the type of article present, MPEP 2144.06 can be relied upon for combining the sensors.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-6 and 9-30 are rejected under 35 U.S.C. 103 as being unpatentable over Fernando (US 2010/0163063) in view of Day (US 2013/0221097) and Egoyants (WO 2013/034459).
Regarding claims 1, 10-11 and 14-15, Fernando teaches an apparatus for enabling smokable material to be heated to volatise at least one component of said smokable material [0021, 0025], the apparatus comprising: a housing [0056]; and a sensor arrangement constructed and arranged to identify an article of smokable material when associated with the housing in use by making use of an optical sensor for optical sensing, wherein the optical sensor is configured to identify the article of smokable material by sensing an indicium arranged externally of the article of smokable material [0042, 0066].
Fernando does not teach a second sensing technique of electrical sensing. Day teaches a medical delivery device comprising a capacitive sensor arranged to sense a change in capacitance when a user inserts a reservoir comprising into the housing [0137]. The sensor is involved in identification of the article inserted into the housing, just as the sensor of Fernando is involved in identification of the article inserted into the housing [0041-0047]. One of ordinary skill in the art would have found it obvious to use this sensing technique, a capacitive sensor arranged to sense a change in capacitance when a user inserts an article of smokable material comprising a rod of smokable material into the housing, in combination with the optical sensor sensing technique of Fernando as applied to claim 1 above to achieve predictable results, e.g. a more thorough or accurate identification due to the combination of two different techniques. It is considered prima facie obvious to combine art recognized equivalents known for the same purpose, see MPEP 2144.06. Thus, the apparatus comprises a sensor arrangement constructed and arranged to identify an article of smokable material when associated with the housing in use by making use of two different sensing techniques. Day further teaches providing the at least one sensor on the inner wall of the reservoir holder [0012]. This is analogous to the inner wall of the cavity 111 of Fernando, which is curved to receive the article [Fig. 1]. Furthermore, as Day suggests two electrodes [0137], one of ordinary skill in the art would have found it obvious to provide to opposing, curved electrodes in Fernando, i.e. defining a circular opening into which the article of smokable material passes when received in the housing, for the purpose of sensing capacitance therebetween when the article is inserted.
Fernando teaches the apparatus comprises electrical control circuitry being configured to follow a first heating pattern when the sensor arrangement identifies a first type of article of smokable material and to follow a second heating pattern, which is different to the first heating pattern, when the sensor arrangement identifies a second type of article of smokable material [0035, 0039, 0041], and the apparatus comprises a heating arrangement configured to heat a plurality of zones of the smokable material of the article of smokable material received in the housing, the heating arrangement comprising a resistive first heater segment for heating a zone of the plurality of zones [0049-0050]. Modified Fernando does not teach a first heater segment which is curved to extend completely around the article of smokable material received in the housing, and the control circuitry configured to control the heating arrangement such that the plurality of zones of the smokable material are heated independently of each other, wherein in each of the first heating pattern and the second heating pattern the plurality of zones are heated independently of one another and the plurality of zones are heated simultaneously. Egoyants teaches a heating apparatus comprises a heating arrangement configured to heat a plurality of zones of the smokable material of the article of smokable material received in the housing, the heating arrangement comprising a first heater segment which is curved to extend completely around the article of smokable material received in the housing, wherein the first heater segment is a resistive heating element for heating a zone of the plurality of zones [page 10, lines 24-33]; wherein the apparatus further comprises electrical control circuitry configured to control the heating arrangement such that the plurality of zones of the smokable material are heated independently of each other and the plurality of zones are heated simultaneously [page 15, l. 25 to page 16, l. 10]. It would have been obvious to one of ordinary skill in the art to apply this configuration to the apparatus of modified Fernando in order to reduce power output as suggested by Egoyants [page 14, l. 16-21].
Regarding claims 2-3, Fernando teaches the first heating pattern and the second heating pattern differ in a timing of heating of the smokable material or differ in a rate of delivery of heat to the rod of smokable material [0035, 0076].
Regarding claims 4-6, Fernando does not teach the apparatus is configured to provide an indication to the user if the article of smokable material is not identified by the sensor arrangement. Day teaches the apparatus is configured to provide a visual or audible indication to the user if inserted reservoir is incorrect [0166], i.e. not identified by the sensor arrangement. It would have been obvious to one of ordinary skill in the art to configure the apparatus of Fernando to provide a visual or audible indication to the user if the article of smokable material is not recognized so as to notify the user that an incorrect article has been inserted.
Regarding claim 9, modified Fernando teaches the heating arrangement comprises two heater segments, the two heater segments comprising the first heater segment and a second heater segment [page 10, l. 24-33].
Regarding claim 12, Egoyants teaches multiple heating regions are independently activated in a predetermined order [page 12, l. 14 to page 14, l. 21]. As Fernando teaches a different heating protocol is tailored for each type of article [0035], this suggests to one of ordinary skill in the art that the predetermined order in modified Fernando may be different for each heating pattern in order to provide the desired experience for each article. Thus, the first heating pattern and the second heating pattern differ in which of the plurality of zones is heated first.
Regarding claim 13, modified Egoyants teaches the two heater segments have different shapes and different configurations [page 8, l. 19 to page 9, l. 12].
Regarding claim 16, Day teaches insertion of the article causes capacitance to vary (i.e. relative to when the article is not present) which allows for identification of the article [0137]. In other words, in the apparatus of Fernando in view of Day as applied to claim 1 above, the apparatus is configured to sense the change in capacitance when the user inserts the article of smokable material into the housing in use by comparing the capacitance when the article of smokable material is received within the housing with the capacitance when the article of smokable material is not present within the housing.
Regarding claims 17-19, modified Fernando teaches the capacitive sensor comprises one or more electrodes for capacitive sensing, wherein the one or more electrodes comprise at least two electrodes which provide a pair of plates of a capacitor, with the insertion of the article of smokable material causing the capacitance between the at least two electrodes to change [Day 0137]. The one or more electrodes may also be considered to provide one plate of a capacitor. The presence of the article itself is not required by the claims. Therefore, the limitation of “the article of smokable material providing another plate of the capacitor” does not further limit the configuration of the claimed apparatus to distinguish from the apparatus of modified Fernando. The apparatus of modified Fernando thus reads on the present limitations.
Regarding claim 20, the presence of the article itself is not required by the claims. Therefore, the limitation of “wherein the electrically conductive region is formed integrally with the article of smokable material during manufacture of the article of smokable material” does not further limit the configuration of the claimed apparatus to distinguish from the apparatus of modified Fernando. The apparatus of modified Fernando thus reads on the present limitations.
Regarding claim 21, the presence of the article itself is not required by the claims. Therefore, the limitation of “wherein the electrically conductive region disposed internally to the article of smokable material and the indicium arranged externally of the article of smokable material are separate from one another” does not further limit the configuration of the claimed apparatus to distinguish from the apparatus of modified Fernando. The sensors of modified Fernando are capable of being used in the claimed manner and thus the apparatus of modified Fernando thus reads on the present limitations.
Regarding claim 22, Fernando teaches in use when the article of smokable material is received in the housing, an end 115 of the article of smokable material projects out of the apparatus through an open end of the housing 105 [Fig. 1].
Regarding claim 23, Day teaches the one or more sensors 204 are located near the open end of the housing [Fig. 2]. In modified Fernando, one of ordinary skill in the art would have found it obvious to provide the one or more electrodes near the open end of the housing to achieve predictable results, e.g. sensing capacitance upon insertion of the article.
Regarding claim 24, the presence of the article itself is not required by the claims. Therefore, the limitation of “the indicium comprises a plurality of linear bars” does not further limit the configuration of the claimed apparatus to distinguish from the apparatus of modified Fernando. The sensors of modified Fernando are capable of being used in the claimed manner and thus the apparatus of modified Fernando thus reads on the present limitations. In any case, Fernando teaches the optical sensor is configured to identify the article of smokable material by sensing a plurality of linear bars [0019].
Regarding claims 25-28, Fernando teaches an optical sensor comprising an optical emitter and one or more detectors configured to detect visible or non-visible light and wherein the optical sensing comprises detection of a bar code of the article of smokable material [0065-0066].
Regarding claim 29, Fernando teaches the housing is configured to receive the article of smokable material which is a generally elongate cylinder comprising the rod of smokable material, herein the apparatus is configured to enable heating of the rod of smokable when, in use, the article of smokable material is received in the housing [Fig. 1; 0029, 0059]. The presence of the article itself is not required by the claims. Therefore, the limitation of “a generally elongate cylinder comprising the rod of smokable material and a filter, the rod of smokable material and the filter being assembled and held together by being rolled in tipping paper” does not further limit the configuration of the claimed apparatus to distinguish from the apparatus of modified Fernando. The apparatus of modified Fernando thus reads on the present limitations.
Regarding claim 30, Fernando teaches the apparatus comprises an inductive heating element [0051]. This apparatus would be capable of, i.e. “configured to”, enabling heating of the rod of smokable material of the article of smokable material received in the housing by causing heating by a susceptor (integral heater) of the article of smokable material. The presence of the article itself is not required by the claims. The apparatus of modified Fernando thus reads on the present limitations.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC YAARY whose telephone number is (571)272-3273. The examiner can normally be reached M-F 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at (571)270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIC YAARY/ Examiner, Art Unit 1755
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