Frederic Philippe. Ampolini et al.

Patent Trials and Appeals Board

Dec 18, 2020

2018006004 (P.T.A.B. Dec. 18, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/713,430 05/15/2015 Frederic Philippe Ampolini R60999 12000US.1 (0809.1 1278
26158 7590 12/18/2020
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
EXAMINER
NELSON, JAMEL M
ART UNIT PAPER NUMBER
1743
NOTIFICATION DATE DELIVERY MODE
12/18/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
BostonDocket@wbd-us.com
IPDocketing@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FREDERIC PHILIPPE AMPOLINI, JOHN DEPIANO,
MATTHEW C. EBBS, and FRANK S. SILVEIRA
Appeal 2018-006004
Application 14/713,430
Technology Center 1700
Before JEFFREY T. SMITH, JEFFREY B. ROBERTSON, and
MONTÉ T. SQUIRE, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 7, 9–13, 17, 22–32, 34, 36–43.
See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as RAI Strategic
Holdings, Inc. Appeal Br. 1.
Appeal 2018-006004
Application 14/713,430

2
CLAIMED SUBJECT MATTER
The claims are directed to an aerosol delivery device and methods of
formation thereof. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. An aerosol delivery device comprising:
a first elongated shell having a mouth end and an opposing
joining end, the first elongated shell housing:
a reservoir for an aerosol-forming composition;
a heater;
a liquid transport element configured for transport of the
aerosol forming composition between the reservoir and the
heater; and
heater terminals;
a second elongated shell having a proximal end configured
for connection with the joining end of the first elongated shell
and having an opposing, distal end, the second elongated shell
being divided into two separate halves along a longitudinal axis
thereof;
at least one battery positioned within the second elongated
shell; and
a base unit defined by at least one wall and having an open
interior, the base unit comprising:
a printed circuit board (PCB) positioned at least partially
within the open interior, the printed circuit board including a first
contact configured for electrical connection with a terminal of
the at least one battery, a second contact configured for electrical
connection with an opposing terminal of the at least one battery,
and first and second heater contacts configured for electrical
connection with the heater terminals.
REJECTIONS
I. Claims 1–3, 7, 11, 12, 17, 22–24, 29–31, and 36 are rejected under
35 U.S.C. § 102(a)(2) as anticipated by Blanchard (WO 2015/038981 A3,
Mar. 19, 2015). (Final Act. 2.)
Appeal 2018-006004
Application 14/713,430

3
II. Claims 4, 9, 10, 13, 25–28, 32, 34, and 37–43 are rejected under 35
U.S.C. § 103 as unpatentable over Blanchard. (Final Act. 7.)

OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has
long been the Board’s practice to require an applicant to identify the alleged
error in the examiner’s rejections,” citing Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential)).

Appellant argues Blanchard fails to disclose an apparatus comprising
a base unit that is defined by at least one wall and has an open interior as
required by independent claim 1. (Appeal Br. 6.)
Appeal 2018-006004
Application 14/713,430

4
An example of Appellant’s invention corresponding to claim 1 is
illustrated in application Figures 4 and 5a. Figure 4 is reproduced below:

Application Figure 4, depicting a schematic illustration of a power
unit and a base unit.
Application Figure 4 depicts a power unit 401 formed from a first
shell half 4201a and a second shell half 4201b which, when combined to
form the completed shell 4201, enclose a battery 410 and a battery lead 433.
Figure 4 depicts a base unit 424 attached at the proximal end 4301a of the
shell 4201 of the power unit 401. (Spec. 21–22.) The Specification
discloses the base unit 424 may include a cavity 425 that extends at least
partially therethrough. (Spec. 23.) The Specification also discloses the base
unit 424 may be connected to the control and/or power member. (Spec. 23.)
Figure 5a is reproduced below:

Appeal 2018-006004
Application 14/713,430

5

Application Figure 5a, depicting a schematic illustration of a base unit
524.
Application Figure 5a depicts a base unit 524 which shows the distal
end 5524a of the base unit comprising a PCB 5106 is positioned within the
open interior of 524. The PCB includes a first contact 5106c configured for
electrical connection with a terminal of the at least one battery 410, a second
contact 531 configured for electrical connection with an opposing terminal
of the battery. The PCB includes first and second heater contacts (5106a,
5106b) configured for electrical connection with the heater terminals. (Spec.
23–24.)

The Examiner finds Blanchard teaches an aerosol delivery device
comprising a first elongated shell (vaporizer housing 102) having a mouth
end (mouthpiece 103) and an opposing joining end (interface connection
112b); a second elongated shell (outer housing 101) having a proximal end
configured (electronic interface connection 112a) for connection with the
joining end of the first elongated shell and having an opposing, distal end,
the second elongated shell being divided into two separate halves along a
longitudinal axis thereof (inner casing 111 having two separate halves 111a
Appeal 2018-006004
Application 14/713,430

6
and 111b); and a base unit (PCB 117 ) defined by at least one wall and
having an open interior. (Final Act. 2–4; Blanchard Figure 1B.) The
Examiner determines the base unit a PCB 117 is positioned at least partially
within the open interior of inner casing 111. (Final Act. 3.)
Blanchard Figure 1B is reproduced below:

Figure 1B, depicting a schematic illustration of an electronic
vaporizing apparatus.
We cannot sustain the Examiner’s anticipation and obviousness
rejections. Blanchard describes an electronic vaporizing apparatus that does
not include a base unit defined by at least one wall and having an open
interior required by independent claims 1, 25, and 29. Independent claims 1
and 25 further describes the base unit as comprising a PCB positioned at
least partially within the open interior. The Examiner determined the
anticipation rejection of the independent claims is appropriate because
Blanchard teaches that the printed circuit assembly 117 (the base unit) is
Appeal 2018-006004
Application 14/713,430

7
defined by the interior sidewall of inner casing 111, which has an open
interior that houses the printed circuit assembly 117 and the energy control
circuit 121, as shown in fig 1B. (Final Act. 17.) The Examiner’s reliance on
the inner casing 111 in combination with PCB 117 to be the base unit
required by the independent claims is misplaced. The claimed invention
specifies that the base unit and second elongated shell are separate
components. (See Application Figures 4 and 5a reproduced above.)
Blanchard’s PCB 117 does not include least one wall and having an open
interior required by independent claims 1, 25, and 29.
The Examiner in the Answer recognizes Blanchard’s PCB 117 (relied
on as the base unit) does not include at least one wall as required by the
claimed invention. To remedy this distinction the Examiner provides a
definition for the term “define” to establish that Blanchard’s PCB 117 has
the structure required by the claimed invention due to the location within the
inner casing 111. (Ans. 3–4.) The claimed invention does not indicate that
the elongated shell including the battery provides the at least one wall for the
base unit as is the case for the inner casing 111 in Blanchard. The claimed
invention specifies, as depicted in figure 4, that the base unit is a separate
component comprising at least one wall in which a PCB can be located.

For these reasons we do not sustain the Examiner’s anticipation and
obviousness rejections.

CONCLUSION
The Examiner’s rejections are REVERSED.

Appeal 2018-006004
Application 14/713,430

8
The Examiner’s decision to reject claims 1–4, 7, 9–13, 17, 22–32, 34,
36–43 is REVERSED.

More specifically,
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 7,
11–12, 17,
22–24,
29–31, 36
102(a)(2) Blanchard 1–3, 7,
11–12, 17,
22–24,
29–31, 36
4, 9–10, 13,
25–28, 32,
34, 37–43
103 Blanchard 4, 9–10, 13,
25–28, 32,
34, 37–43
Overall
Outcome
1–4, 7,
9–13, 17,
22–32, 34,
36–43

REVERSED