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 .
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 and 3-7 are rejected under 35 U.S.C. 103 as being unpatentable over Zuber et al. (US 2014/0305448) in view of Malgat et al. (US 2016/0309781).
Claims 1, 4, and 7. Zuber et al. discloses an aerosol-generating article 10 comprising four elements arranged in coaxial alignment: an aerosol-forming substrate 20 (tobacco rod), a support element 30 (second air flow delivery element), an aerosol-cooling element 40, and a mouthpiece 50 ([0178]; Figure 1). Aerosol-forming substrate 20 comprises a gathered sheet of crimped homogenised tobacco material circumscribed by a wrapper ([0180]). The aerosol-generating article may comprise a front-plug (first air flow delivery element) upstream of the aerosol-forming substrate, wherein the front plug is penetrable by a heating element of an aerosol-generating device ([0022]). The front-plug may be formed from cellulose acetate tow. The permeability (first porosity) of the front-plug may be varied to help control resistance to draw of the aerosol-generating article ([0031]). The support element 30 is located immediately downstream of the aerosol-forming substrate 20 and abuts the aerosol-forming substrate 20. In the embodiment shown in FIG. 1, the support element is a hollow cellulose acetate tube ([0181]). The aerosol-forming substrate, the support element and the aerosol-cooling element and any other elements of the aerosol-generating article, such as the front-plug (first air flow delivery element) and mouthpiece where present, are circumscribed by an outer wrapper. The outer wrapper may be formed from any suitable material or combination of materials ([0154]).
Zuber et al. does not explicitly disclose that the porosity of the front plug (first air flow delivery element) is greater than or equal to 10% and less than 30% and that the porosity of the support element 30 (second air flow delivery element) is greater than that of the front plug (first air flow delivery element). However, since Zuber et al. identifies the permeability (porosity) of the front plug as a result effective variable (“The permeability of the front-plug may be varied to help control resistance to draw of the aerosol-generating article” ([0031]), it would have been obvious to one of ordinary skill in the art before the effective filing date that a permeability (porosity) of the front plug of greater than or equal to 10% and less than 30% may be achieved through routine experimentation in order to achieve a higher resistance to draw in the smoking article. Furthermore, one of ordinary skill in the art would recognize that the support element 30 (second air flow delivery element) being a hollow cellulose acetate tube ([0181]) would have greater permeability (porosity) than the front plug (first air flow delivery element).
Zuber et al. teaches that the front plug is penetrable by a heating element of an aerosol-generating device ([0022]) but does not explicitly disclose that the cross-section of the front plug (first air flow delivery element) comprises a Y-shaped empty space. However, changes in shape are considered a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration is significant (See MPEP §2144.04(IV)(B)).
Zuber et al. does not explicitly disclose that the outer wrapper is a wrapper comprising a metal foil.
Malgat et al. discloses an electrically-operated aerosol-generating system 2000 that utilises a heating blade 2100 to heat an aerosol-generating substrate 1020 of an aerosol-generating article 1000 ([0079]; Figure 4). The aerosol-forming substrate 1020 comprises a rod formed from a co-laminated sheet of homogenised tobacco and aluminium foil wrapped in aluminium foil 1021 to form a plug. The wrapper 1021 may be any metal foil ([0075]).
Malgat et al. teaches that a user may inadvertently attempt to ignite the aerosol-forming substrate 1020 by applying a flame to the distal end 1013 and simultaneously drawing air through the mouthpiece. Should this occur, the aluminium foil component of the co-laminated sheet will swiftly spread the applied heat throughout the aerosol-forming substrate, thereby making it more difficult to increase the homogenised tobacco component to its ignition temperature. This lowered propensity for ignition may be sufficient for the user to desist in the attempts to ignite the article ([0075]). It would have been obvious to one of ordinary skill in the art before the effective filing date that the outer wrapper of Zuber et al. may be a metal foil in order to prevent a user from inadvertently igniting the aerosol-forming substrate as taught by Malgat et al.
Claim 3. Modified Zuber et al. does not explicitly disclose that the ratio of the second porosity to the first porosity is greater than or equal to 1 and less than 3. However, since Zuber et al. identifies the permeability (porosity) of the front plug as a result effective variable (“The permeability of the front-plug may be varied to help control resistance to draw of the aerosol-generating article” ([0031]), it would have been obvious to one of ordinary skill in the art before the effective filing date that a ratio of the porosity of the support element 30 (second air flow delivery element) to the permeability (porosity) of the front plug is greater than one and less than 3 may be achieved through routine experimentation in order to achieve a desired resistance to draw in the smoking article. Furthermore, one of ordinary skill in the art would recognize that the support element 30 (second air flow delivery element) being a hollow cellulose acetate tube ([0181]) would have greater permeability (porosity) than the front plug (first air flow delivery element), thus the ratio of porosities would necessarily be greater than 1.
Claims 5 and 6. Modified Zuber et al. discloses that the support element (second air flow delivery element) may have an external diameter of between approximately 5 millimetres and approximately 12 millimetres, for example of between approximately 5 millimetres and approximately 10 millimetres or of between approximately 6 millimetres and approximately 8 millimetres. In a preferred embodiment, the support element has an external diameter of 7.2 millimetres +/-10% ([0093]; Figure 1). Zuber et al. also teaches that the support element (second air flow delivery element) is a hollow cellulose acetate tube ([0181]) but does not explicitly disclose the inner diameter of the hollow cellulose acetate tube. However, it would have been obvious to one of ordinary skill in the art before the effective filing date that the inner diameter of the hollow tube is a result effective variable which may be increased through routine experimentation to achieve a lower resistance to draw in the support element (second air flow delivery element) (See MPEP § 2144.05(II)(A)).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Zuber et al. (US 2014/0305448) in view of Liu (US 2013/0014772) and Malgat et al. (US 2016/0309781).
Claim 8. Zuber et al. discloses an aerosol-generating article 10 comprising four elements arranged in coaxial alignment: an aerosol-forming substrate 20 (tobacco rod), a support element 30 (second air flow delivery element), an aerosol-cooling element 40, and a mouthpiece 50 ([0178]; Figure 1). Aerosol-forming substrate 20 comprises a gathered sheet of crimped homogenised tobacco material circumscribed by a wrapper ([0180]). The aerosol-generating article may comprise a front-plug (first air flow delivery element) upstream of the aerosol-forming substrate, wherein the front plug is penetrable by a heating element of an aerosol-generating device ([0022]). The front-plug may be formed from cellulose acetate tow. The permeability (first porosity) of the front-plug may be varied to help control resistance to draw of the aerosol-generating article ([0031]). The support element 30 is located immediately downstream of the aerosol-forming substrate 20 and abuts the aerosol-forming substrate 20. In the embodiment shown in FIG. 1, the support element is a hollow cellulose acetate tube ([0181]). The aerosol-generating article 10 illustrated in FIG. 1 is designed to engage with an aerosol-generating device comprising a heating element in order to be smoked or consumed by a user. In use, the heating element of the aerosol-generating device heats the aerosol-forming substrate 20 of the aerosol-generating article 10 to a sufficient temperature to form an aerosol, which is drawn downstream through the aerosol-generating article 10 and inhaled by the user ([0186]). The aerosol-generating device comprises a heating element 120. As shown in FIG. 2, the heating element 120 is mounted within an aerosol-generating article receiving chamber of the aerosol-generating device 110. In use, the user inserts the aerosol-generating article 10 into the aerosol-generating article receiving chamber of the aerosol-generating device 110 such that the heating element 120 is directly inserted into the aerosol-forming substrate 20 of the aerosol-generating article 10 as shown in FIG. 2. In the embodiment shown in FIG. 2, the heating element 120 of the aerosol-generating device 110 is a heater blade ([0188]; Figure 2). The aerosol-generating device 110 comprises a power supply and electronics that allow the heating element 120 to be actuated ([0189]). A controller 150 is connected to the heating element 120, the electrical energy supply 140, and a user interface 160, for example a button or display. The controller 150 controls the power supplied to the heating element 120 in order to regulate its temperature ([0195]).
Zuber et al. does not explicitly disclose that the porosity of the front plug (first air flow delivery element) is greater than or equal to 10% and less than 30% and that the porosity of the support element 30 (second air flow delivery element) is greater than that of the front plug (first air flow delivery element). However, since Zuber et al. identifies the permeability (porosity) of the front plug as a result effective variable (“The permeability of the front-plug may be varied to help control resistance to draw of the aerosol-generating article” ([0031]), it would have been obvious to one of ordinary skill in the art before the effective filing date that a permeability (porosity) of the front plug of greater than or equal to 10% and less than 30% may be achieved through routine experimentation in order to achieve a higher resistance to draw in the smoking article. Furthermore, one of ordinary skill in the art would recognize that the support element 30 (second air flow delivery element) being a hollow cellulose acetate tube ([0181]) would have greater permeability (porosity) than the front plug (first air flow delivery element).
Zuber et al. teaches that the front plug is penetrable by a heating element of an aerosol-generating device ([0022]) but does not explicitly disclose that the cross-section of the front plug (first air flow delivery element) comprises a Y-shaped empty space. However, changes in shape are considered a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration is significant (See MPEP §2144.04(IV)(B)).
Zuber et al. does not explicitly disclose that the aerosol-generating device further comprises a vaporizer configured to generate an aerosol by vaporizing a liquid composition and delivering the aerosol into the cigarette through the front-end plug.
Liu discloses an atomization device 20 (vaporizer) comprising an atomizing housing 22 loaded with oil absorbent 21, a heating coil 23 (first heater), a top electrode 24, metal external thread 25 and a top insulation ring 26. The oil absorbent 21 inside the atomizing housing 22 is connected to the storage tank 10 ([0028]; Figures 2 and 3). The storage tank is filled with extractant (liquid composition) ([0022]; Figures 2 and 3). A connection tube 50 (airflow passage) connects atomization device 20 (vaporizer) to connection joint 60. A top opening of the connection joint 60 is engaged into a bottom opening of the metal tube 32a ([0028]; Figures 2 and 3). The extractant in the oil absorbent absorbed from the storage tank 10 is atomized by the generated heat. The atomized extractant passes through the through-hole of the lower electrode 28, the through-hole of the top electrode 24, the insulation connection tube 50 and the connection joint 60 before it reaches the metal tube 32a in the device for flue-curing tobacco 30 ([0032]; Figures 2 and 3). The device further comprises a device for flue-curing tobacco 30, which includes a heating mechanism 31 (heater) and a heated chamber 32 for loading cigarette or tobacco ([0022]; Figures 2 and 3). The nicotine and the atomized extractant are mixed together and then inhaled into smokers' lungs through the opening for suction nozzle ([0032]; Figures 2 and 3). The device further comprises a heater circuit and atomization circuit arranged on a circuit board 80 (controller) ([0028]), the heater circuit controlling the heating element 311 and the atomization circuit controlling the heating coil 23 ([0032]).
Liu teaches that the device allows for the nicotine in the cigarette or tobacco is vaporized by the device for flue-curing tobacco at the temperature of 100.degree. C. to 580.degree. C., so that the nicotine and the extractant is mixed together into a substance in the form of atomization, while the tar and other harmful impurities still remain in the tobacco. In this way, the harm of smoking to human health is reduced as the smokers only inhale the substance in the form of atomization composed of the nicotine and the extractant into their lungs when smoking ([0015]). It would have been obvious to one of ordinary skill in the art before the effective filing date that the smoking article of Zuber et al. be heated and smoked via the device of Liu in order to reduce the harm of smoking as taught by Liu.
Zuber et al. does not explicitly disclose that the outer wrapper is a wrapper comprising a metal foil.
Malgat et al. discloses an electrically-operated aerosol-generating system 2000 that utilises a heating blade 2100 to heat an aerosol-generating substrate 1020 of an aerosol-generating article 1000 ([0079]; Figure 4). The aerosol-forming substrate 1020 comprises a rod formed from a co-laminated sheet of homogenised tobacco and aluminium foil wrapped in aluminium foil 1021 to form a plug. The wrapper 1021 may be any metal foil ([0075]).
Malgat et al. teaches that a user may inadvertently attempt to ignite the aerosol-forming substrate 1020 by applying a flame to the distal end 1013 and simultaneously drawing air through the mouthpiece. Should this occur, the aluminium foil component of the co-laminated sheet will swiftly spread the applied heat throughout the aerosol-forming substrate, thereby making it more difficult to increase the homogenised tobacco component to its ignition temperature. This lowered propensity for ignition may be sufficient for the user to desist in the attempts to ignite the article ([0075]). It would have been obvious to one of ordinary skill in the art before the effective filing date that the outer wrapper of Zuber et al. may be a metal foil in order to prevent a user from inadvertently igniting the aerosol-forming substrate as taught by Malgat et al.
Response to Arguments
Applicant's arguments filed 10/15/25 have been fully considered but they are not persuasive.
Applicant argues that the Y-shaped empty space is not merely a matter of design choice because it prevents the tobacco rod from falling off and effects the porosity of the front-end plug. Applicant contends that a circular cavity would risk tobacco material escaping through the cavity of the front plug. Examiner argues that it is unclear how a Y-shaped cavity prevents the tobacco rod from falling off while circular or other shaped cavities (such as a star shape) do not. Examiner finds that Applicant has not provided objective evidence that the particular Y-shaped cavity configuration is significant.
Applicant further argues that Zuber teaches away from a Y-shaped empty space because it discloses a hollow tubular element in a preferred embodiment. Examiner argues that a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments (See MPEP § 2123).
Applicant also argues that the cited references do not disclose a wrapper comprising a metal foil. Examiner notes that the current rejection cites Malgat et al. (US 2016/0309781) for its teaching of a metal foil.
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 Katherine A Will whose telephone number is (571)270-0516. The examiner can normally be reached Monday-Friday 10:00AM-6:00PM(EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Wilson can be reached on (571)270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KATHERINE A WILL/Primary Examiner, Art Unit 1747
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