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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114 was filed in this application after a decision by the Patent Trial and Appeal Board, but before the filing of a Notice of Appeal to the Court of Appeals for the Federal Circuit or the commencement of a civil action. Since this application is eligible for continued examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant' s submission filed on 04/16/2026 has been entered.
Status of the Claims
Claims 1, 2-7, 10, 18 and 20-23 are pending.
Claims 1, 10, 18 and 20-23 have been amended.
Response to Arguments
Applicant' s arguments, filed 4/16/2026, have been fully considered and are persuasive. The Applicant has amended claims 1, 10, 18 and 20-23 to include limitations that were not previously presented. The previously applied prior art Groten in view of Hansson in view Axelsson and in view of Sebastian do not appear to teach or suggest the new limitation.
Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of previously applied prior art in view of newly found prior art.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis 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 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, 2-7, 10, 18 and 20-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 20060019570 (Groten hereinafter) in view of US 20050061339 (Hansson hereinafter) in view of US 20090293895 (Axelsson hereinafter) in view of US 2012/0103353 (Sebastian hereinafter) and further in view of US 20080202536 (Torrence hereinafter).
Regarding claims 1 and 20, Groten teaches a pouched product containing chewing tobacco configured for insertion into the mouth of a user of that product (“chewing tobacco pouches”, [0003]). Groten teaches that the pouch is comprised of two (or more) layers of nonwoven spunlaid webs, comprising continuous filament heat sealable fibers ([0004]-[0005]) which are joined by sewing ([0005]-[0007]).
Groten does not expressly teach that the first layer is hydrophilic as compared to the second layer and the second layer is hydrophobic as compared to the first layer, or that the composition within the cavity of the pouch comprises particulate non-tobacco material treated to contain nicotine and/or flavor.
Hansson teaches a tobacco or tobacco substitute product encapsulated in a membrane material (abstract) wherein the membrane is a bi-layer membrane with one membrane being hydrophilic and one membrane being hydrophobic ([0069]). Hansson discloses that the bi-layer membrane may be designed to have a specific nicotine release profile ([0100]-[0102]). The hydrophilic or hydrophobic nature of the membrane has an effect on the release of substances such as nicotine through the membrane. In general, the flow of hydrophilic substances through a hydrophobic membrane is slower compared to a hydrophilic membrane ([0031]; [0092]). The bilayer membrane having a hydrophilic membrane and a hydrophobic membrane has high permeability to nicotine, can be designed to have a prolonged or sustained release, and prevents unwanted and harmful substances in the tobacco from passing through the membrane ([0069]). Thus, it would have been obvious to one of ordinary skill in the art at the time of filing that the pouch disclosed by Groten, could be modified to be a bi-layer membrane having a hydrophilic layer and a hydrophobic layer so as to design a specific nicotine release profile as disclosed by Hansson.
Modified Groten does not expressly teach that the composition within the cavity of the pouch comprises particulate non-tobacco material treated to contain nicotine and/or flavor.
Axelsson teaches the use of a nicotine-cellulose combination for the preparation of a snuff composition (abstract), wherein the snuff is normally in the form of a bag or pouch suitable to be inserted between the lip and the teeth and the cellulose is microcrystalline cellulose ([0012]). It would have been obvious for one of ordinary skill in the art at the time of filing to have included the nicotine-cellulose combination of Axelsson in the pouched product of modified Groten with a reasonable expectation of success and predictable results because the nicotine-cellulose combination of Axelsson allows for a fast onset of action of nicotine after application of the snuff composition to the oral cavity of a user ([0001]).
As stated in the Patent Board Decision dated 1/22/2026, Groten, Hansson, and Axelsson do not disclose "wherein at least one of the first nonwoven spunlaid web and the second nonwoven spunlaid web further comprises a third plurality of fibers" from the group recited in claim 1.
As further stated in the Patent Board Decision dated 1/22/2026, Sebastian discloses a smokeless tobacco pouch made up of a biodegradable fleece made from spun bi-component fibers including polylactic acid (PLA), which may be mixed with other fibers, such as fibers formed from cellulose acetate (one of the third fibers recited in claim 1). Sebastian ¶¶ 1, 7, 39, 40, 43, 55. Sebastian discloses also that the hydrophilicity of the biodegradable polymer may be modified by application of starch and/or food grade surfactants. Id. ¶ 37. It would have been obvious to have used PLA fibers mixed with cellulose acetate fibers in at least one of the first and second nonwoven spunlaid webs in the modified pouched product of Groten, Hansson, and Axelsson, to produce pouched products that are biodegradable as suggested by Sebastian. Further, as discussed above, Sebastian discloses that the hydrophilicity of the biodegradable polymer may be modified such that one of ordinary skill in the art would have implemented Sebastian's biodegradable polymers in the bi-layer membrane of the modified pouched product of Groten, Hansson, and Axelsson, to design a specific nicotine release profile as suggested by Hansson wherein the first nonwoven spunlaid web is hydrophilic as compared to the second nonwoven spunlaid web and the second nonwoven spunlaid web is hydrophobic compared to the first nonwoven spunlaid web as recited in claim 1.
Modified Groten does not expressly teach that the first nonwoven spunlaid web (hydrophilic compared to the second nonwoven spunlaid web) is an outer layer of the pouch and comprises a flavor component, and that the second nonwoven spunlaid web (hydrophobic compared to the first nonwoven spunlaid web) is an inner layer of the pouch.
However, Hansson teaches that the membrane material is a bi-layer membrane with one membrane being preferentially hydrophilic and one membrane being predominantly hydrophobic. Both membranes possess high permeability to nicotine while maintaining low aqueous pore diffusion. The release profile of nicotine could either be identical to the release profile of original snuff or it could be designed to have a prolonged or sustained release. The unwanted and harmful substances from the tobacco should substantially be maintained inside the membrane (Hansson, [0069]). This would suggest that it would have been beneficial to have the second nonwoven spunlaid web as the inner layer of the pouch, since it is hydrophobic compared to the first nonwoven spunlaid web, and thus would be capable of keeping the unwanted and harmful substances from the tobacco inside the membrane (Hansson, [0069]).
Additionally, given that Modified Groton teaches a bi-layer member and there are only two options for the positioning of the first nonwoven spunlaid web and the second nonwoven spunlaid web, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have pursued the known potential solutions with a reasonable expectation of success. The courts have held that "a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103."KSR, 550 U.S. at 421, 82 USPQ2d at 1397.
Modified Groton teaches applying a hydrophilic fabric coating to the pouch material, wherein the coating comprises flavorants (Hansson, [0034]), but does not expressly teach that the first nonwoven spunlaid web comprises a flavor component.
Torrence teaches an oral pouch flavor product with a fibrous flavored wrapper (abstract). Torrence teaches that the flavorants are added to the fibrous material by spraying, coating, immersing, embossing, and/or dispersing ([0028]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated flavorants, as taught by Torrence, into the outer most later of modified Groton, which is the first nonwoven spunlaid web, with a reasonable expectation of success and predictable results, specifically that when the outer wrapper includes flavorants embedded therein, it provides initial flavor to the user before the inner filling material mixes with saliva to release the flavors and juices from the inner filling material (Torrence, [0009]).
Regarding claims 2-7, modified Groten does not expressly teach that the webs comprise PLA fibers and/or PHA fibers.
Sebastian teaches a pouched product with a water-permeable pouch containing particulate tobacco material configured for insertion into the mouth of a user (abstract). The pouch comprises a nonwoven spunlaid web comprising a plurality of continuous filaments fibers ([0055]). Sebastian teaches the filament fibers are PLA fibers ([0043]). It would have been obvious to have used PLA fibers in the combined teaching of modified Groten with a reasonable expectation of success and predictable results because Sebastian teaches known fibers for use in a similar pouched product and it merely involves applying a known material to a similar product.
Regarding claims 10 and 18, modified Groten teaches the pouched product of claim 1 (see rejection of claim 1, above) and teaches that the composition further comprises a tobacco material (Axelsson, [0016]).
Regarding claims 21-23, modified Groten teaches that the composition within the cavity of the pouch additionally comprises a fibrous plant material, specifically starch (including potato starch or shoti starch) treated to contain a tobacco extract, specifically nicotine (Axelsson, [0023]). While modified Groten does not expressly teach that the starch is corn starch, it would have been obvious for one of ordinary skill in the art at the time of the invention to have substituted the potato starch or shoti starch in modified Groten with corn starch because the courts have held that simple substitution of known element for another to accomplish the same results is obvious to one of ordinary skill in the art. See MPEP 2143 IB.
Conclusion
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YANA B. KRINKER
Examiner
Art Unit 1755
/YANA B KRINKER/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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