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, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9/26/2025 has been entered.
Response to Amendment
This office action is in response to Applicant’s amendment filed 9/26/2025.
Claims 15 and 27 are amended.
Claims 1-14, 16-18, 20, and 22 are cancelled.
Claims 15, 19, 21, and 23-28 are pending.
Response to Arguments
Applicant's arguments filed 9/26/2025 have been fully considered but they are not persuasive.
Applicant notes that claims 15 and 27 have been amended to recite a binder in a content amount of 1 to 4% by weight, magnesium hydroxide in an amount of 5% by weight or less, and a pH of the homogenized tobacco material is from 5.5 to 8.0 (p. 7). Applicant argues that Casey only broadly discloses a composition containing about 0-25% weight filler and never provides an example containing magnesium hydroxide (p. 7).
The Examiner has noted Applicant’s argument but finds it unpersuasive. “Disclose[d] examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments.” See MPEP 2123(II). Here, the mere fact that Casey does not disclose an example of a tobacco composition containing magnesium hydroxide does not detract from Casey’s suggestion of incorporating magnesium hydroxide as a filler in an amount of about 0-25%.
Applicant argues that Casey does not describe magnesium hydroxide as a pH control agent to form a composition having a pH of 5.5 to 8.0 in a content amount of 5 weight % or less (p. 7).
The Examiner has noted Applicant’s argument but finds it unpersuasive. Claims 15 and 27 do not require using magnesium hydroxide as a pH control agent, or that magnesium hydroxide is used to adjust the pH of the homogenized tobacco material to a range of 5.5 to 8.0. Claims 15 and 27 merely separately require magnesium hydroxide in an amount of 5% or less, and a pH of the homogenized tobacco material being in the range of 5.5 to 8.0.
Applicant notes that Casey describes pH control agents as including calcium hydroxide (citing col. 13) (p. 7). Applicant also notes that the Lang Declaration filed 3/19/2024 contains compositions including magnesium hydroxide to provide pH control while limiting nicotine loss in preparation and provide a significant increase in rate of transfer to the aerosol in comparison to calcium hydroxide (p. 7-8).
The Examiner has noted Applicant’s argument but finds it unpersuasive under the circumstances because Casey uses magnesium hydroxide and calcium hydroxide for different reasons in their tobacco composition. Specifically, Casey uses magnesium hydroxide as an inorganic filler (col. 12, ll. 45-49) whereas calcium hydroxide is used as a pH control agent (col. 13, ll. 20-27). The divergent uses of magnesium hydroxide and calcium hydroxide obviate the use of the Lang Declaration filed 3/18/2024, which establishes that calcium hydroxide and magnesium hydroxide are not equivalent pH control agents due to magnesium hydroxide’s superior and unexpected results in nicotine aerosol delivery, nicotine aerosol transfer rate, glycerine aerosol delivery, and glycerine aerosol transfer rate.
Applicant notes that Beven teaches the inorganic filler, including magnesium hydroxide, may be present in an amount of 45-94% or 0-93% ([0063] but provides no description that would have motivated one of ordinary skill to modify Casey to derive the composition of claim 15 (p. 8).
The Examiner respectfully disagrees. “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. ‘[W]here 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.’” MPEP 2144.05(II)(A). Here, Casey discloses the general condition that the tobacco composition includes organic and inorganic fillers in an amount of up to 82% (col. 4, ll. 44-54). However, Casey does not explicitly disclose the split of organic to inorganic fillers in this embodiment. Beven teaches that it is known to use a split of 1-94% organic filler and 0-93% inorganic filler ([0063]), and where magnesium hydroxide readily serves to render the aerosol generating means non-combustible ([0063]). Thus, taking Beven as a whole, one of skill in the art would be motivated to use magnesium hydroxide in an amount of 0-93% to render the aerosol generating means non-combustible by routine experimentation within prior art conditions.
Applicant notes that a second Declaration has been filed by Dr. Lang on 9/26/2025 (p. 8), which shows using 0.72 weight % magnesium hydroxide results in a 15.8% increase in the nicotine transfer rate to aerosol when compared to a homogenized tobacco material containing no magnesium hydroxide (p. 8). The declaration also states Dr. Lang’s opinion that neither Casey nor Beven provide any teaching or suggestion that would have lead one of skill in the art to deliver the composition as now recited in claim 15 or predict the significant improvement in nicotine transfer to aerosol when magnesium hydroxide is present in the composition at 5 weight % or less, which provides significant and unexpected improvements over Casey and Beven (p. 8). Applicant further submits that the data of record is commensurate in scope with claim 15’s recitation of the contents of tobacco, binder, aerosol former, and magnesium (p. 9).
The Examiner has considered the second declaration but finds it insufficient to establish unexpected results for the following reasons.
First, the Examiner is hesitant to accept the nonobviousness of the claimed range of “a content of magnesium hydroxide…is less than or equal to 5% by weight on a dry weight basis” based on the results of Samples 2-4 in the declaration. “The nonobviousness of a broader claimed range can be supported by evidence based on unexpected results from testing a narrower range if one of ordinary skill in the art would be able to determine a trend in the exemplified data which would allow the artisan to reasonably extend the probative value thereof.” MPEP 716.02.(d). The Examiner agrees that the data shows that there is a 15.8% increase in the nicotine transfer rate to the aerosol in a tobacco composition containing 0.72% magnesium hydroxide. However, the Examiner notes that Sample 3’s tobacco composition containing 1.45% magnesium hydroxide notably has a decreased nicotine transfer rate when compared to the Sample 1 control having no magnesium hydroxide. While Dr. Lang states the opinion that “this result is erroneous and that the sample was incorrectly tested” (see p. 4 of the declaration), there appears to be no underlying factual basis for the Examiner to come to the same conclusion. Thus, the Examiner cannot necessarily draw a trend or extrapolate the result obtained from Samples 2 and 4. The Examiner suggests providing more data points between samples 2 and 4 to establish such a trend.
Second, the Examiner notes that even if the trend between Samples 2 to 4 could be established above, this would only be sufficient to establish the unexpected benefit over a tobacco composition containing a lower endpoint of 0% magnesium hydroxide. “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range.” MPEP 716.02(d)(II). Here, the declaration is missing samples that illustrate the criticality of the upper endpoint of 5% because there are no samples above 5% magnesium hydroxide.
Applicant argues that Casey in view of Beven provides broad generalized descriptions of a wide range of components and does not make known all elements of the composition of claim 15 as now recited, which is a requirement in KSR (p. 9).
The Examiner respectfully disagrees. While modified Casey’s descriptions disclose more alternative components and wider ranges than claimed, the Examiner contends that modified Casey discloses all of the elements of amended claim 15. Specifically, modified Casey discloses a substrate composition comprises tobacco in the form of a cut filler in an amount of 57-82%, at least 15% aerosol forming material, at least 3% binder, and 0-25% inorganic filler including magnesium hydroxide (see rejection below).
Applicant argues that Young’s process of obtaining a reconstituted tobacco relates to adjusting pH to remove pectin and then crosslink the removed pectin, which is not related to aerosol formation (p. 10). Applicants further argues that Young uses much stronger bases (ammonia, KOH, NaOH) (p. 10).
The Examiner has noted Applicant’s argument, but finds it unpersuasive.
Regarding Applicant’s argument about aerosol formation, Young teaches that crosslinking the tobacco slurry improves the smoking properties and flavor attribute of the reconstituted tobacco material (col. 2, ll. 28-33). Therefore, crosslinking would affect aerosol formation by affecting the properties of smoke, which is an aerosol, and flavor.
Regarding Applicant’s argument that Young uses much stronger bases, the Examiner notes that claim 15 includes the transition word “comprising,” “which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps.” MPEP 2111.03(I). Since claim 15 is open-ended, there is nothing that would exclude the use of stronger bases in Young to achieve the desired pH of 6 to 8 (Young; col. 4, ll. 11-18).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The 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 15, 19, and 23-28 are rejected under 35 U.S.C. 103 as being unpatentable over Casey et al. (US 5415186; of record) in view of Beven et al. (US 2004/0025894; of record) and Young et al. (US 5339838; of record).
Regarding claim 15, Casey discloses a stabilized substrate (abstract) the substrate comprises, in a first embodiment, a mixture including tobacco (col. 4, ll. 44-54; see also col. 14, l. 56-col. 15, l. 2; “homogenized tobacco material”) comprising:
up to about 82 percent of one or more filler materials including tobacco in some form (col. 4, ll. 48-52; “tobacco material” and “content of the tobacco material”), wherein the tobacco is in the form of a cut filler as the substrate base (col. 3, ll. 13-26; “particulate tobacco material”);
at least about 15 weight percent of an aerosol forming material (col. 4, ll. 46-47; “aerosol former” and “content of greater than or equal to 15% by weight on a dry weight basis”);
at least about 3 weight percent of a binder (col. 4, ll. 47-48); and
wherein the filler material may alternatively or additionally comprise an inorganic material, such as calcium carbonate or other inorganic salt (col. 4, ll. 52-54), wherein examples of useful inorganic filler materials include magnesium hydroxide (col. 12, ll. 45-59; “magnesium hydroxide” and “content of magnesium hydroxide”).
Regarding the claim limitation “a particulate tobacco material containing nicotine,” one of ordinary skill in the art would appreciate that the tobacco in Casey contains nicotine since nicotine naturally occurs in tobacco and the tobacco has not been treated to remove any of the nicotine.
Regarding the claim limitation “a content of the binder is from 1 to 4% by weight on a dry weight basis,” Casey’s disclosed range of at least 3 weight percent overlaps the claimed range. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05(I).
However, Casey’s first embodiment does not explicitly teach wherein a content of the magnesium hydroxide in the homogenized tobacco material is less than or equal to 5% by weight on a dry weight basis and the homogenized tobacco material being greater than or equal to 65% by weight, on a dry weight basis. Specifically, while Casey describes that total amount of tobacco filler and inorganic filler may reach an upper end point of 82%, Casey does not describe how much inorganic filler can be used alternatively to the tobacco or additionally to the tobacco filler in the first embodiment.
Casey further teaches, in a second embodiment, using optionally from about 0 to about 25 weight percent of one or more inorganic filler materials (col. 4, ll. 60-63).
Furthermore, Beven teaches an aerosol generating means ([0060]) in a third system comprising 1-25% organic binder, 1-94% organic filler material, 0-93% inorganic filler material and 5-30% aerosol forming means ([0063]) wherein inorganic fillers such as magnesium hydroxide readily serve to render the aerosol generating means non-combustible ([0063]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modified the inorganic filler material including magnesium hydroxide as in Casey to be in an amount of 0 to 25 weight percent as in Casey and Beven in order to obtain the predictable result of rendering the aerosol generating means non-combustible (Beven; [0063]). Moreover, "[w]here 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." MPEP 2144.05(II)(A).
Regarding the claim limitation “wherein a content of the magnesium hydroxide in the homogenized tobacco material is less than or equal to 5% by weight on a dry weight basis,” modified Casey disclose about 0-25% of magnesium hydroxide in the mixture, which overlaps the claimed range. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding the claim limitation “the homogenized tobacco material being greater than or equal to 65% by weight, on a dry weight basis,” modified Casey’s two teachings (i.e., an upper limit of 82 weight percent of total filler and 0-25 percent inorganic filler) would result in the tobacco filler being in an amount of 57-82% (82-25 and 82-0 respectively) tobacco filler when the total amount of filler is 82%. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05(I).
Furthermore, Casey discloses wherein the sheet substrate is formed from a mixture (col. 4, ll. 44-54) and substrate mixture can be cast as a sheet from an aqueous slurry, extruded, molded or otherwise formed into the desired sheet form (col. 5, ll. 20-22) and that other materials such a pH control agents can be incorporated into the slurry if desired (col. 13, ll. 20-27).
However, modified Casey does not explicitly teach wherein the pH is between about 5.5 and about 8.
Young teaches a method for providing a reconstituted tobacco material (abstract) comprising contacting tobacco material with a liquid to provide a slurry (abstract), and providing the slurry with a desired pH range of about 5 to 9, and preferably about 6 to 8 (col. 4, ll. 11-18). Young teaches a slurry (23) is subjected (40) to conditions sufficient to release tobacco pectins, forming the tobacco material having released tobacco pectins (45) into a formed (50) predetermined shape, and subjected to conditions sufficient to crosslink the released tobacco pectins by contacting (57) the slurry with a cross linking agent (col. 2, ll. 44-56). Young further teaches that the pH level can be utilized to control the crosslinking (col. 6, ll. 40-42).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the pH Casey’s tobacco slurry to be in the range of preferably 6 to 8 as in Young because (a) Casey suggests adjusting the pH of the tobacco slurry (col. 5, ll. 20-22) and (b) since such a modification involves routine optimization within prior art conditions. "[W]here 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).
Moreover, it would have been obvious to said skilled artisan to have applied the known method of subjecting the tobacco to a condition sufficient to release tobacco pectins, forming the tobacco material into a predetermined shape, and crosslinking the tobacco material as suggested by Young and modifying the pH as discussed above, and because (a) it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art (see MPEP 2144.05 II(B)), and (b) Young suggests that crosslinking the tobacco slurry improves the smoking properties and flavor attribute of the reconstituted tobacco material (Young; col. 2, ll. 28-33).
Regarding claim 19, regarding the claim limitation “wherein the homogenized botanical material has a pH of between 6.0 and 7.5,” modified Casey discloses an overlapping pH range of 6-8. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 23, modified Casey discloses the substrate mixture can be cast as a sheet from an aqueous slurry, extruded, molded or otherwise formed into the desired sheet form (col. 5, ll. 20-22; “sheet of homogenized tobacco material”).
Regarding claim 24, modified Casey discloses that the substrate can be employed in gathered web form (col. 5, ll. 22-24; “gathered sheet”) and wrapped in paper to form a rod (col. 5, ll. 60-62; “circumscribed by a wrapper”).
Regarding claim 25, modified Casey discloses the rod formed from the gathered sheet of substrate mixture (col. 5, ll. 22-24) in the form of a rod (col. 5, ll. 60-62; “aerosol-generating rod”).
Regarding the claim limitation “an aerosol-generating article for an electrically operated aerosol-generating system,” this limitation is considered a preamble statement reciting an intended use which does not result in any structural differences in the aerosol-generating article. See MPEP 2111.02(II). Casey’s cigarette is capable of being used in a device which electrically heats the tobacco to release an aerosol.
Regarding claim 26, modified Casey discloses a smoking article having a fuel element (10; Fig. 1) prepared from a combustible composition (col. 16, l. 66-col. 17, l. 6; “combustible heat source”) and the gathered sheet of substrate mixture (col. 5, ll. 22-24) in the form of a rod (14; col. 5, ll. 60-62; “aerosol-generating rod”), wherein the substrate material is downstream of the fuel element (see Fig. 1).
Regarding claim 27, Casey discloses a method of forming a cast sheet (col. 5, ll. 20-22), in a first embodiment, a mixture including tobacco (col. 4, ll. 44-54; see also col. 14, l. 56-col. 15, l. 2; “homogenized tobacco material”) comprising:
providing a mixture (“combining”) of (i) aerosol forming material (col. 4, ll. 46-47; “aerosol former”), (ii) one or more filler materials, including tobacco in some form (col. 4, ll. 48-52), such as cut filler as the substrate base (col. 3, ll. 13-26; “particulate tobacco material”), (iii) a binder (col. 4, ll. 47-48), (iv) additional or alternative inorganic material (col. 4, ll. 52-54), include magnesium hydroxide (col. 12, ll. 45-59), and (v) a binder/water mixture (col. 5, ll. 15-17);
casting the substrate mixture as a sheet from an aqueous slurry (col. 5, ll. 20-22), on a stainless steel belt (col. 26, ll. 10-12; “support surface”);
drying the sheet without driving off the aerosol forming materials (col. 5, ll. 55-58; col. 26, ll. 12-17), and
doctoring the sheet off the stainless steel belt (col. 26, l. 17; “removing the cast sheet…from the support surface”),
wherein the sheet comprises up to about 82 percent of the one or more filler materials (col. 4, ll. 48-52);
wherein the sheet comprises at least about 3 weight percent of the binder (col. 4, ll. 47-48); and
wherein the sheet comprises at least about 15 weight percent of the aerosol forming material (col. 4, ll. 46-47; “content of greater than or equal to 15% by weight on a dry weight basis”).
Regarding the claim limitation “water at 20 °C and 1 atm,” one of ordinary skill would appreciate that 20 °C and 1 atm is room temperature and pressure respectively. Moreover, one of ordinary skill in the art would appreciate that since Casey does not specify any special conditions under which the binder/water mixture is added to the substrate mixture, the binder/water mixture is added at room temperature and pressure of 20 °C and 1 atm.
Regarding the claim limitation “a content of the binder is from 1 to 4% by weight on a dry weight basis,” Casey’s disclosed range of at least 3 weight percent overlaps the claimed range. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05(I).
However, Casey’s first embodiment does not explicitly teach wherein a content of the magnesium hydroxide in the homogenized tobacco material is less than or equal to 5% by weight on a dry weight basis and the homogenized tobacco material being greater than or equal to 65% by weight, on a dry weight basis. Specifically, while Casey describes that total amount of tobacco filler and inorganic filler may reach an upper end point of 82%, Casey does not describe how much inorganic filler can be used alternatively to the tobacco or additionally to the tobacco filler in the first embodiment.
Casey further teaches, in a second embodiment, using optionally from about 0 to about 25 weight percent of one or more inorganic filler materials (col. 4, ll. 60-63).
Furthermore, Beven teaches an aerosol generating means ([0060]) in a third system comprising 1-25% organic binder, 1-94% organic filler material, 0-93% inorganic filler material and 5-30% aerosol forming means ([0063]) wherein inorganic fillers such as magnesium hydroxide readily serve to render the aerosol generating means non-combustible ([0063]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modified the inorganic filler material including magnesium hydroxide as in Casey to be in an amount of 0 to 25 weight percent as in Casey and Beven in order to obtain the predictable result of rendering the aerosol generating means non-combustible (Beven; [0063]). Moreover, "[w]here 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." MPEP 2144.05(II)(A).
Regarding the claim limitation “wherein a content of the magnesium hydroxide in the homogenized tobacco material is less than or equal to 5% by weight on a dry weight basis,” modified Casey disclose about 0-25% of magnesium hydroxide in the mixture, which overlaps the claimed range. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding the claim limitation “the homogenized tobacco material being greater than or equal to 65% by weight, on a dry weight basis,” modified Casey’s two teachings (i.e., an upper limit of 82 weight percent of total filler and 0-25 percent inorganic filler) would result in the tobacco filler being in an amount of 57-82% (82-25 and 82-0 respectively) tobacco filler when the total amount of filler is 82%. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05(I).
Furthermore, Casey discloses wherein the sheet substrate is formed from a mixture (col. 4, ll. 44-54) and substrate mixture can be cast as a sheet from an aqueous slurry, extruded, molded or otherwise formed into the desired sheet form (col. 5, ll. 20-22) and that other materials such a pH control agents can be incorporated into the slurry if desired (col. 13, ll. 20-27).
However, modified Casey does not explicitly teach wherein the pH is between about 5.5 and about 8.
Young teaches a method for providing a reconstituted tobacco material (abstract) comprising contacting tobacco material with a liquid to provide a slurry (abstract), and providing the slurry with a desired pH range of about 5 to 9, and preferably about 6 to 8 (col. 4, ll. 11-18). Young teaches a slurry (23) is subjected (40) to conditions sufficient to release tobacco pectins, forming the tobacco material having released tobacco pectins (45) into a formed (50) predetermined shape, and subjected to conditions sufficient to crosslink the released tobacco pectins by contacting (57) the slurry with a cross linking agent (col. 2, ll. 44-56). Young further teaches that the pH level can be utilized to control the crosslinking (col. 6, ll. 40-42).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the pH Casey’s tobacco slurry to be in the range of preferably 6 to 8 as in Young because (a) Casey suggests adjusting the pH of the tobacco slurry (col. 5, ll. 20-22) and (b) since such a modification involves routine optimization within prior art conditions. "[W]here 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).
Moreover, it would have been obvious to said skilled artisan to have applied the known method of subjecting the tobacco to a condition sufficient to release tobacco pectins, forming the tobacco material into a predetermined shape, and crosslinking the tobacco material as suggested by Young and modifying the pH as discussed above, and because (a) it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art (see MPEP 2144.05 II(B)), and (b) Young suggests that crosslinking the tobacco slurry improves the smoking properties and flavor attribute of the reconstituted tobacco material (Young; col. 2, ll. 28-33).
Regarding claim 28, modified Casey further discloses:
gathering the cast substrate to form a gathered web (col. 5, ll. 22-24; “gathering…transversely relative to a longitudinal axis thereof”);
wrapping the gathered web in paper to form a rod (col. 5, ll. 60-62; “circumscribing the gathered cast sheet…with a wrapper to form a rod”); and
cutting into 10 mm section to be used as substrates (col. 5, ll. 61-62; “severing the rod into a plurality of discrete aerosol-generating rods”).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Casey et al. in view of Beven et al. and Young et al. as applied to claim 15 above, and further in view of Hufnagel et al. (US 2017/0119041; of the record).
Regarding claim 21, modified Casey discloses the homogenized tobacco material as discussed above with respect to claim 15. Casey further discloses that substrate mixture can also include optional flavoring agents (col. 5, ll. 12-20).
However, modified Casey silent as to further comprising a lipid having a melting point of between about 50 °C and about 150°C.
Hufnagel teaches a smoking composition including tobacco material and a flavor delivery system (abstract), the flavor delivery system including a flavor material and a first wax material (“lipid”) forming a core and a second different wax material encapsulating the core, the first wax material has a melting point of about 100 °C or greater ([0007]; “melting point of between 50-150°C”), wherein combining the smoking composition and the flavor delivery system predictably releases the flavor material during consumption of the smoking article and provides uniform distribution of flavor material throughout the smoking composition to enhance tobacco flavor notes ([0008]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have added Hufnagel’s flavor delivery system including the wax material having a melting point of 100 °C or greater to Casey’s substrate mixture in order to obtain the predictable result of releasing flavor material during consumption with the benefit of uniform distribution of flavor material throughout the smoking composition to enhance the flavor of the tobacco (Hufnagel; [0008]) and prevent volatile flavorants from migrating to other parts of the smoking article which would adversely impact performance of other components of the smoking article (Hufnagel; [0015]).
Conclusion
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/SONNY V NGUYEN/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755