DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/24/2025 has been entered.
Status of the Claims
Claims 16-21, 23, and 25-37 are pending. Claims 16 and 36 have been amended. Claim 37 is new.
Response to Arguments
Applicant's arguments filed 12/24/2025 have been fully considered but they are not persuasive.
With regard to England, Applicant argues that the values for the lengths of the different segments of England appear to have been selected from different sections of the description of England, which would have required hindsight knowledge of the present application. This argument is not persuasive as England discloses ranges for these parameters, and values within these ranges satisfy the claim limitations. As such, a prima facie case of obviousness exists (MPEP § 2144.05(I)).
Applicant further argues that “hindsight knowledge” and “numerous assumptions” were required to modify England with Grant. This argument is not persuasive as the modification of England with Grant was supported with motivation for combining the references, as discussed in the rejections below.
Applicant argues that it would not have been obvious for one of ordinary skill in the art to reduce the length of the body of smokeable material in England. This argument is not persuasive as the modification of England with Farine to reduce the length of the body of smokeable material is supported with motivation for combining the references, as discussed in the rejections below.
Applicant then argues that reducing the length of the body of smokable material of England “would not have had a reasonable expectation that such a modification would result in an article providing acceptable levels of aerosol delivery”. This argument is not persuasive as Applicant has not provided any evidence into the record as to a minimum amount of smokeable material required to make the aerosol delivery “acceptable”, and “[t]he arguments of counsel cannot take the place of evidence in the record.” (MPEP § 716.01(c), citing In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965)). Further, Applicant has not presented any evidence showing there was no reasonable expectation of success (MPEP § 2143.02(II)), and the reasonable expectation of success is “implicitly shown via the prior art teachings [and] as part of the obviousness analysis” in the rejections below (MPEP § 2143.02(I)).
With regard to Farine, Applicant argues that Farine does not disclose the length of the hollow tube 24, so it would not have been obvious to one of ordinary skill in the art to include a support element having a length of between 5 millimetres and 15 millimetres. This argument is not persuasive as Farine discloses the overall length and length of every segment except the hollow tube 24, allowing one of ordinary skill in the art to subtract to determine the length of the hollow tube 24 of Farine (the aerosol-generating article of Farine, “aerosol-generating article 20”, includes four segments: “aerosol-forming substrate 22”, “hollow tube 24”, “transfer section 26”, and “mouthpiece filter 28”, Fig. 2, ¶ 0072; the overall length of “aerosol-generating article 20” is 45 mm, ¶ 0047, 0072; the length of “aerosol-forming substrate 22” is 10 mm or 12 mm, ¶ 0047; the length of “transfer section 26” is 18 mm, ¶ 0075; the length of “mouthpiece filter 28” is 7.5 mm; therefore, “hollow tube 24”, which corresponds to the support element, has a length of 45 mm – (10 mm or 12 mm) – 18 mm – 7.5 mm = 9.5 mm or 7.5 mm). The lengths of the support element taught by Farine, 9.5 millimetres and 7.5 millimetres, both fall within the claimed range of between 5 millimetres and 15 millimetres (see MPEP § 2131.03).
Applicant further argues that even if one of ordinary skill in the art had been motivated to include a support element in the article of England, one of ordinary skill in the art would have had no motivation to also reduce the overall length of the article of England. This argument is not persuasive as the modification of England with Farine to both include a support element and reduce the overall length of the article is supported with motivation for combining the references, as discussed in the rejections below.
With regard to new claim 37, Applicant argues that England teaches that “the ventilation ratio, is at least 15%” in paragraph [0071] but that England does not disclose “the article 301 has a ventilation level of between 30 percent and 42 percent”. This argument is not persuasive as the ventilation level of at least 15 percent taught by England overlaps the claimed ventilation level range of between 30 percent and 42 percent (MPEP § 2144.05(I)).
Applicant further argues that the claimed ventilation level leads to unexpected results of improved glycerin delivery and reduced phenol-containing species delivery. Applicant's allegation of unexpected results is not persuasive. In order to rebut the rejection of claim 37 in view of England, Grant, and Farine, based on the allegedly unexpected results obtained by having a ventilation level of between 30 percent and 42 percent, the burden is on the Applicant to present results that are of both statistical and practical significance (MPEP § 716.02(b)(I)). Further, "[t]o 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)). The portion of Applicant's specification cited by Applicant to support the allegation of unexpected results does not provide any data establishing either a statistical or practical significance and, therefore, Applicant has not satisfied the burden of demonstrating that the results are unexpected and significant.
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 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 16-21, 23, and 25-37 are rejected under 35 U.S.C. 103 as being unpatentable over England et al. (US 2019/0116875 A1) in view of Grant (US 2017/0238600 A1) and Farine et al. (US 2017/0027234 A1).
Regarding claim 16, England discloses an aerosol-generating article (“article 301”, Fig. 3, ¶ 0043) for producing an inhalable aerosol upon heating (¶ 0050), the aerosol-generating article comprising:
a rod (“body of smokable material” 303, Fig. 3, that corresponds to “body of smokable material 103”, ¶ 0020, 0043) of aerosol-generating substrate (¶ 0050);
a hollow tubular segment (“cooling segment 307”, Fig. 3, ¶ 0044, that corresponds to “cooling segment 107”, ¶ 0026, 0043) at a location downstream of the rod (Fig. 3), the hollow tubular segment being in longitudinal alignment with the rod (Fig. 3), wherein the hollow tubular segment defines a cavity (“chamber”, ¶ 0026) extending from an upstream end of the hollow tubular segment to a downstream end of the hollow tubular segment (Fig. 3);
a mouthpiece segment (combination of “filter segment” 309 and “mouth end segment” 311, Fig. 3, that correspond to “filter segment 109” and “mouth end segment 111”, ¶ 0020, 0043) at a location downstream of the hollow tubular segment (Fig. 3), the mouthpiece segment comprising a plug of filtration material (“filter segment” 309, Fig. 3, that corresponds to “filter segment 109 [which] may be formed of any filter material”, ¶ 0032, 0043); and
a ventilation zone (“ventilation region 317”, Fig. 3, ¶ 0044) at a location along the hollow tubular segment (“ventilation holes may be located in the cooling segment 307”, Fig. 3, ¶ 0044), the ventilation zone comprising one or more rows of perforations (“one or more rows of holes”, Fig. 3, ¶ 0044) formed through a peripheral wall (“formed through the outer layer”, ¶ 0044) of the hollow tubular segment,
wherein the hollow tubular segment has a length of less than 25 millimetres (“at least 15 mm”, ¶ 0028), and
wherein the rod of aerosol-generating substrate comprises at least an aerosol former (“aerosol forming agent, such as glycerol”, ¶ 0021).
However, England does not explicitly disclose wherein a ratio between a weight of the hollow tubular segment and a volume of the cavity defined by the hollow tubular segment is less than 1 milligram/cubic millimetres, as England does not disclose a specific diameter to use in the calculation of the volume of the cavity defined by the hollow tubular segment.
Grant, in the same field of endeavor, discloses an aerosol-generating article with a hollow tubular segment with an external diameter of 7 mm (¶ 0039). Grant also teaches that the hollow tubular segment functions as an expansion chamber for aerosol generated in an aerosol-generating substrate (¶ 0028). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have made the hollow tubular segment taught by England with the known external diameter of 7 mm taught by Grant to obtain the benefit of the hollow tubular section functionality taught by Grant.
For determining the volume of the cavity defined by the hollow tubular segment, combining the 7 mm external diameter of the hollow tubular segment taught by Grant with the 0.29 mm thickness of the wall of the hollow tubular segment taught by England (see England, ¶ 0026) gives an internal diameter of the hollow tubular segment of 6.42 mm. Therefore, based on the 6.42 mm internal diameter of the hollow tubular segment taught by England in view of Grant and the 15 mm length of the hollow tubular segment taught by England (see England, ¶ 0028), the volume of the cavity defined by the hollow tubular segment is approximately 486 mm3.
For determining the weight of the hollow tubular segment, England teaches that the hollow tubular segment can be made of a spirally wound paper tube (¶ 0029), that the hollow tubular segment can be made of tipping paper (¶ 0030), and that a standard tipping paper is 58 gsm tipping paper (¶ 0025). Four spirally wound layers of 58 gsm tipping paper would achieve the disclosed thickness of the hollow tubular segment of 0.29 mm1 and correspond to a weight of approximately 77 mg, for a hollow tubular segment with 7 mm external diameter and 15 mm length.
Combining the volume of the cavity defined by the hollow tubular segment of approximately 486 mm3 with the weight of the hollow tubular segment of approximately 77 mg gives a ratio of approximately 0.16 mg/mm3, which is less than 1 mg/mm3.
England also does not explicitly disclose that the rod of aerosol-generating substrate has an aerosol former content of at least about 10 percent on a dry weight basis.
Grant, in the same field of endeavor, teaches including an aerosol former content of approximately 20 percent on a dry weight basis in an aerosol-generating substrate (¶ 0047). Grant also teaches a benefit of including sufficient aerosol former content in the aerosol-generating substrate in that it facilitates conveying nicotine and flavour in an aerosol (¶ 0045). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have included the aerosol former taught by England at the level taught by Grant to achieve this benefit.
England discloses that the rod and the hollow tubular segment may be separated (“there may be a separation between the body of smokable material 103 and the cooling segment 107”, ¶ 0020) but does not explicitly disclose a support element between the rod and the hollow tubular segment and immediately upstream of the hollow tubular segment, the support element being a tubular element having an equivalent internal diameter smaller than an equivalent internal diameter of the hollow tubular segment, wherein the support element has a length of between 5 millimetres and 15 millimetres.
Farine, in the same field of endeavor, discloses a support element (“a support element, such as a hollow tube 24”, Fig. 2, ¶ 0072) between a rod of aerosol-generating substrate (“aerosol-forming substrate 22”, Fig. 2, ¶ 0072) and a hollow tubular segment (“transfer section 26”, Fig. 2, ¶ 0072) and immediately upstream of the hollow tubular segment (see Fig. 2), the support element being a tubular element having an equivalent internal diameter smaller than an equivalent internal diameter of the hollow tubular segment (see Fig. 2). Farine teaches a benefit to using a support element in that it assists in keeping the rod of aerosol-generating substrate toward a distal end of the aerosol-generating article (¶ 0074). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use a support element as taught by Farine between the rod and the hollow tubular segment and immediately upstream of the hollow tubular segment of England, the support element being a tubular element having an equivalent internal diameter smaller than an equivalent internal diameter of the hollow tubular segment, as taught by Farine, in order to obtain this benefit.
Farine also discloses wherein the support element has a length of 9.5 millimetres or 7.5 millimetres (the aerosol-generating article of Farine, “aerosol-generating article 20”, includes four segments: “aerosol-forming substrate 22”, “hollow tube 24”, “transfer section 26”, and “mouthpiece filter 28”, Fig. 2, ¶ 0072; the overall length of “aerosol-generating article 20” is 45 mm, ¶ 0047, 0072; the length of “aerosol-forming substrate 22” is 10 mm or 12 mm, ¶ 0047; the length of “transfer section 26” is 18 mm, ¶ 0075; the length of “mouthpiece filter 28” is 7.5 mm; therefore, “hollow tube 24”, which corresponds to the support element, has a length of 45 mm – (10 mm or 12 mm) – 18 mm – 7.5 mm = 9.5 mm or 7.5 mm). The lengths 9.5 millimetres and 7.5 millimetres both fall within the claimed range of between 5 millimetres and 15 millimetres (see MPEP § 2131.03).
England also does not explicitly disclose that the rod has a length of less than 20 millimetres and an overall length of the aerosol-generating article is at least about 40 millimetres and less than 60 millimetres (see Fig. 3 below, annotated by the examiner, displaying minimum lengths disclosed by England for each segment of the article, ¶ 0022, 0028, 0037, 0039; as shown in the annotated Fig. 3, body of smokeable material 303, which corresponds to the rod of aerosol-generating substrate, has a length of 34 mm, as described in ¶ 0022, 0043 of England, and the overall length of the aerosol-generating article is 61 mm, which is greater than 60 mm before including the additional length from adding a support element).
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Figure 3, Annotated by Examiner, Showing Minimum Lengths of England
Farine further discloses that the rod of aerosol-generating substrate has a length of 10 millimetres or 12 millimetres (“the aerosol-forming substrate may have a length of approximately 10 mm . . . the aerosol-forming substrate may have a length of approximately 12 mm”, ¶ 0047 of Farine), whereas England discloses that the rod of aerosol-generating substrate has a length of 34 millimetres (¶ 0022 of England). One of ordinary skill in the art would have understood that there was a benefit to shortening the length of the rod of aerosol-generating substrate in that it reduces the overall cost of manufacturing the article by reducing the amount of materials required. Therefore, 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 rod disclosed by England to have the shorter length taught by Farine, in order to achieve this benefit. Both 10 millimetres and 12 millimetres fall within the claimed range of less than 20 millimetres (MPEP § 2131.03).
The resulting aerosol-generating article taught by England in view of Farine, with a 12 millimetre mouthpiece segment and 15 millimetre hollow tubular segment taught by England (see Fig. 3 of England above, annotated by the examiner to show minimum lengths disclosed by England in ¶ 0028, 0037, 0039) and a 9.5 or 7.5 millimetre support element and 10 or 12 millimetre aerosol-generating substrate taught by Farine (see calculations above based on ¶ 0047, 0072, 0075 of Farine), has an overall length of 46.5 millimetres (see Fig. 3 below, annotated by the examiner to show the article of the combination of England and Farine). The overall length of 46.5 millimetres falls within the claimed range of at least about 40 millimetres and less than 60 millimetres (MPEP § 2131.03).
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Figure 3, Annotated by Examiner, Showing Combination of England and Farine
Regarding claim 17, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England further discloses wherein the hollow tubular segment comprises a wrapper (“annular tipping paper”, ¶ 0025) circumscribing the rod (¶ 0025).
Regarding claim 18, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England further discloses
wherein the hollow tubular segment comprises a tube (“annular tube”, ¶ 0025) formed from a polymeric material or a cellulosic material (“paper”, ¶ 0029-0030), and
wherein the aerosol-generating article further comprises a wrapper (“annular tipping paper”, ¶ 0025) circumscribing the rod and the tube (¶ 0020, 0025).
Regarding claim 19, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England in view of Grant teaches a ratio between a weight of the hollow tubular segment and a volume of the cavity defined by the hollow tubular segment of approximately 0.16 mg/mm3, as discussed above, which is less than 0.2 mg/mm3.
Regarding claim 20, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England in view of Grant teaches an equivalent internal diameter of the hollow tubular segment at the location of the ventilation zone of 6.42 mm, as discussed above, which is greater than 5 mm.
Regarding claim 21, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England in view of Grant teaches an equivalent internal diameter of the hollow tubular segment at the location of the ventilation zone of 6.42 mm, as discussed above, which is less than 9 mm.
Regarding claim 23, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England further discloses wherein a thickness of a peripheral wall of the hollow tubular segment is less than 1.5 millimetres (“0.29 mm”, ¶ 0026).
Regarding claim 25, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England in view of Grant teaches a ratio between a weight of the hollow tubular segment and a volume of the cavity defined by the hollow tubular segment of approximately 0.16 mg/mm3, as discussed above, which is less than 0.5 mg/mm3.
Regarding claim 26, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England further discloses wherein the aerosol-generating article has a ventilation level of at least 20 percent (“ventilation ratio is between 50% and 85%”, ¶ 0072).
Regarding claim 27, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England further discloses wherein a distance between the ventilation zone and an upstream end of the hollow tubular segment is at least about 6 millimetres (“the ventilation holes are located between 17 mm and 20 mm from the proximal end 313”, ¶ 0047-0048; see Fig. 3 above, annotated by the examiner; as shown in annotated Fig. 3, the ventilation holes are placed on the cooling segment 307, which corresponds to the hollow tubular segment, such that they are between 17 and 20 mm from the proximal end 313, which corresponds to between 7 and 10 mm from an upstream end of the hollow tubular segment, which is also at least about 6 mm from an upstream end of the hollow tubular segment).
Regarding claim 28, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England further discloses a distance between the ventilation zone and an upstream end of the hollow tubular segment between 7 and 10 mm (“the ventilation holes are located between 17 mm and 20 mm from the proximal end 313”, ¶ 0047-0048; see Fig. 3 above, annotated by the examiner; as shown in annotated Fig. 3, the ventilation holes are placed on the cooling segment 307, which corresponds to the hollow tubular segment, such that they are between 17 and 20 mm from the proximal end 313, which is between 7 and 10 mm from an upstream end of the hollow tubular segment). England in view of Grant teaches an equivalent internal diameter of the hollow tubular segment at the location of the ventilation zone of 6.42 mm, as discussed above. Therefore, a ratio between a distance between the ventilation zone and an upstream end of the hollow tubular segment and an equivalent internal diameter of the hollow tubular segment at the location of the ventilation zone is between 1.1 and 1.6, which is less than 4.
Regarding claim 29, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England in view of Grant teaches an external diameter of the hollow tubular segment of 7 mm. England does not explicitly disclose an external diameter of the rod of aerosol-generating substrate. Grant discloses an aerosol-generating article in which both a hollow tubular segment and a rod of aerosol-generating substrate have an external diameter of 7 mm (¶ 0039, 0051). Grant also teaches a disadvantage of having different diameters for different segments of an aerosol-generating article in that the difference in diameters can cause tilting which can jam machinery during production (¶ 0012). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have made both the hollow tubular segment and the rod of aerosol-generating substrate taught by England with the same known external diameter of 7 mm taught by Grant to avoid this disadvantage. This 7 mm external diameter of the rod of aerosol-generating substrate is between about 6 mm and 8 mm.
Regarding claim 30, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England further discloses wherein the ventilation zone further comprises two rows of perforations formed through the peripheral wall of the hollow tubular segment (Fig. 3, ¶ 0044-0045), the rows of perforations being longitudinally spaced apart from one another along the hollow tubular segment (Fig. 3).
Regarding claim 31, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England in view of Grant teaches an equivalent internal diameter of the hollow tubular segment at the location of the ventilation zone of 6.42 mm, as discussed above, which is greater than 6 mm.
Regarding claim 32, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. England further discloses a distance between the ventilation zone and an upstream end of the hollow tubular segment between 7 and 10 mm (“the ventilation holes are located between 17 mm and 20 mm from the proximal end 313”, ¶ 0047-0048; see Fig. 3 above, annotated by the examiner; as shown in annotated Fig. 3, the ventilation holes are placed on the cooling segment 307, which corresponds to the hollow tubular segment, such that they are between 17 and 20 mm from the proximal end 313, which is between 7 and 10 mm from an upstream end of the hollow tubular segment). England in view of Grant teaches an equivalent internal diameter of the hollow tubular segment at the location of the ventilation zone of 6.42 mm, as discussed above. Therefore, a ratio between a distance between the ventilation zone and an upstream end of the hollow tubular segment and an equivalent internal diameter of the hollow tubular segment at the location of the ventilation zone is between 1.1 and 1.6, which is less than 2.5.
Regarding claim 33, England in view of Grant and Farine teaches the aerosol-generating article according to claim 16, as stated above. Farine does not explicitly disclose the thickness of a peripheral wall of the support element in order to determine if it is at least 1.5 millimetres. However, the thickness of the peripheral wall of the support element is equal to the difference between the external radius of the support element and the internal radius of the support element. Farine discloses that the internal radius of the support element is 1.5 millimetres (“The tube 24 defines an aperture having a diameter of 3 millimetres”, ¶ 0074). Farine further discloses that the external radius of the support element is substantially the same as the hollow tubular segment (see Fig. 2). As discussed in the rejection of claim 16 above, it would have been obvious to form the hollow tubular segment to have an external diameter of 7 millimetres which corresponds to an external radius of 3.5 millimetres and, therefore, it would have been obvious to form the support element to also have an external radius of 3.5 millimetres. With an external radius of 3.5 millimetres and an internal radius of 1.5 millimetres, the thickness of a peripheral wall of the support element is 2 millimetres (3.5 millimetres – 1.5 millimetres) which falls within the claimed range.
Regarding claim 34, England in view of Grant and Farine teaches the aerosol-generating article according to claim 33, as stated above. England further discloses wherein a thickness of a peripheral wall of the hollow tubular segment is less than 1250 micrometres (“the thickness of the wall of the cooling segment 107 is approximately 0.29 mm”, ¶ 0026).
Regarding claim 35, England in view of Grant and Farine teaches the aerosol-generating article according to claim 33, as stated above. England further discloses wherein a thickness of a peripheral wall of the hollow tubular segment is less than 1000 micrometres (“the thickness of the wall of the cooling segment 107 is approximately 0.29 mm”, ¶ 0026).
Regarding claim 36, England discloses an aerosol-generating article (“article 301”, Fig. 3, ¶ 0043) for producing an inhalable aerosol upon heating (¶ 0050), the aerosol-generating article comprising:
a rod (“body of smokable material” 303, Fig. 3, that corresponds to “body of smokable material 103”, ¶ 0020, 0043) of aerosol-generating substrate (¶ 0050);
a hollow tubular segment (“cooling segment 307”, Fig. 3, ¶ 0044, that corresponds to “cooling segment 107”, ¶ 0026, 0043) at a location downstream of the rod (Fig. 3), the hollow tubular segment being in longitudinal alignment with the rod (Fig. 3), wherein the hollow tubular segment defines a cavity (“chamber”, ¶ 0026) extending from an upstream end of the hollow tubular segment to a downstream end of the hollow tubular segment (Fig. 3);
a mouthpiece segment (combination of “filter segment” 309 and “mouth end segment” 311, Fig. 3, that correspond to “filter segment 109” and “mouth end segment 111”, ¶ 0020, 0043) at a location downstream of the hollow tubular segment (Fig. 3), the mouthpiece segment comprising a plug of filtration material (“filter segment” 309, Fig. 3, that corresponds to “filter segment 109 [which] may be formed of any filter material”, ¶ 0032, 0043); and
a ventilation zone (“ventilation region 317”, Fig. 3, ¶ 0044) at a location along the hollow tubular segment (“ventilation holes may be located in the cooling segment 307”, Fig. 3, ¶ 0044), the ventilation zone comprising one or more rows of perforations (“one or more rows of holes”, Fig. 3, ¶ 0044) formed through a peripheral wall (“formed through the outer layer”, ¶ 0044) of the hollow tubular segment,
wherein the hollow tubular segment has a length of less than 25 millimetres (“at least 15 mm”, ¶ 0028), and
wherein the rod of aerosol-generating substrate comprises at least an aerosol former (“aerosol forming agent, such as glycerol”, ¶ 0021).
However, England does not explicitly disclose wherein a ratio between a weight of the hollow tubular segment and a volume of the cavity defined by the hollow tubular segment is less than 1 milligram/cubic millimetres, as England does not disclose a specific diameter to use in the calculation of the volume of the cavity defined by the hollow tubular segment.
Grant, in the same field of endeavor, discloses an aerosol-generating article with a hollow tubular segment with an external diameter of 7 mm (¶ 0039). Grant also teaches that the hollow tubular segment functions as an expansion chamber for aerosol generated in an aerosol-generating substrate (¶ 0028). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have made the hollow tubular segment taught by England with the known external diameter of 7 mm taught by Grant to obtain the benefit of the hollow tubular section functionality taught by Grant.
For determining the volume of the cavity defined by the hollow tubular segment, combining the 7 mm external diameter of the hollow tubular segment taught by Grant with the 0.29 mm thickness of the wall of the hollow tubular segment taught by England (see England, ¶ 0026) gives an internal diameter of the hollow tubular segment of 6.42 mm. Therefore, based on the 6.42 mm internal diameter of the hollow tubular segment taught by England in view of Grant and the 15 mm length of the hollow tubular segment taught by England (see England, ¶ 0028), the volume of the cavity defined by the hollow tubular segment is approximately 486 mm3.
For determining the weight of the hollow tubular segment, England teaches that the hollow tubular segment can be made of a spirally wound paper tube (¶ 0029), that the hollow tubular segment can be made of tipping paper (¶ 0030), and that a standard tipping paper is 58 gsm tipping paper (¶ 0025). Four spirally wound layers of 58 gsm tipping paper would achieve the disclosed thickness of the hollow tubular segment of 0.29 mm2 and correspond to a weight of approximately 77 mg, for a hollow tubular segment with 7 mm external diameter and 15 mm length.
Combining the volume of the cavity defined by the hollow tubular segment of approximately 486 mm3 with the weight of the hollow tubular segment of approximately 77 mg gives a ratio of approximately 0.16 mg/mm3, which is less than 1 mg/mm3.
England also does not explicitly disclose that the rod of aerosol-generating substrate has an aerosol former content of at least about 10 percent on a dry weight basis.
Grant, in the same field of endeavor, teaches including an aerosol former content of approximately 20 percent on a dry weight basis in an aerosol-generating substrate (¶ 0047). Grant also teaches a benefit of including sufficient aerosol former content in the aerosol-generating substrate in that it facilitates conveying nicotine and flavour in an aerosol (¶ 0045). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have included the aerosol former taught by England at the level taught by Grant to achieve this benefit.
England discloses that the rod and the hollow tubular segment may be separated (“there may be a separation between the body of smokable material 103 and the cooling segment 107”, ¶ 0020) but does not explicitly disclose a support element between the rod and the hollow tubular segment and immediately upstream of the hollow tubular segment, the support element being a tubular element, wherein the support element and the hollow tubular segment have substantially the same external diameter, a thickness of a peripheral wall of the support element being larger than a thickness of a peripheral wall of the hollow tubular segment, wherein the support element has a length of between 5 millimetres and 15 millimetres.
Farine, in the same field of endeavor, discloses a support element (“a support element, such as a hollow tube 24” in Fig. 2, ¶ 0072) between a rod of aerosol-generating substrate (“aerosol-forming substrate 22” in Fig. 2, ¶ 0072) and a hollow tubular segment (“transfer section 26” in Fig. 2, ¶ 0072) and immediately upstream of the hollow tubular segment (see Fig. 2), the support element being a tubular element (see Fig. 2), wherein the support element and the hollow tubular segment have substantially the same external diameter (see Fig. 2), a thickness of a peripheral wall of the support element being larger than a thickness of a peripheral wall of the hollow tubular segment (see Fig. 2). Farine teaches a benefit to using a support element in that it assists in keeping the rod of aerosol-generating substrate toward a distal end of the aerosol-generating article (¶ 0074). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use a support element as taught by Farine between the rod and the hollow tubular segment and immediately upstream of the hollow tubular segment of England, the support element being a tubular element, wherein the support element and the hollow tubular segment have substantially the same external diameter, a thickness of a peripheral wall of the support element being larger than a thickness of a peripheral wall of the hollow tubular segment, as taught by Farine, in order to obtain this benefit.
Farine also discloses wherein the support element has a length of 9.5 millimetres or 7.5 millimetres (the aerosol-generating article of Farine, “aerosol-generating article 20”, includes four segments: “aerosol-forming substrate 22”, “hollow tube 24”, “transfer section 26”, and “mouthpiece filter 28”, Fig. 2, ¶ 0072; the overall length of “aerosol-generating article 20” is 45 mm, ¶ 0047, 0072; the length of “aerosol-forming substrate 22” is 10 mm or 12 mm, ¶ 0047; the length of “transfer section 26” is 18 mm, ¶ 0075; the length of “mouthpiece filter 28” is 7.5 mm; therefore, “hollow tube 24”, which corresponds to the support element, has a length of 45 mm – (10 mm or 12 mm) – 18 mm – 7.5 mm = 9.5 mm or 7.5 mm). The lengths 9.5 millimetres and 7.5 millimetres both fall within the claimed range of between 5 millimetres and 15 millimetres (see MPEP § 2131.03).
England also does not explicitly disclose that the rod has a length of less than 20 millimetres and an overall length of the aerosol-generating article is at least about 40 millimetres and less than 60 millimetres (see Fig. 3 below, annotated by the examiner, displaying minimum lengths disclosed by England for each segment of the article, ¶ 0022, 0028, 0037, 0039; as shown in the annotated Fig. 3, body of smokeable material 303, which corresponds to the rod of aerosol-generating substrate, has a length of 34 mm, as described in ¶ 0022, 0043 of England, and the overall length of the aerosol-generating article is 61 mm, which is greater than 60 mm before including the additional length from adding a support element).
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Figure 3, Annotated by Examiner, Showing Minimum Lengths of England
Farine further discloses that the rod of aerosol-generating substrate has a length of 10 millimetres or 12 millimetres (“the aerosol-forming substrate may have a length of approximately 10 mm . . . the aerosol-forming substrate may have a length of approximately 12 mm”, ¶ 0047 of Farine), whereas England discloses that the rod of aerosol-generating substrate has a length of 34 millimetres (¶ 0022 of England). One of ordinary skill in the art would have understood that there was a benefit to shortening the length of the rod of aerosol-generating substrate in that it reduces the overall cost of manufacturing the article by reducing the amount of materials required. Therefore, 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 rod disclosed by England to have the shorter length taught by Farine, in order to achieve this benefit. Both 10 millimetres and 12 millimetres fall within the claimed range of less than 20 millimetres (MPEP § 2131.03).
The resulting aerosol-generating article taught by England in view of Farine, with a 12 millimetre mouthpiece segment and 15 millimetre hollow tubular segment taught by England (see Fig. 3 of England above, annotated by the examiner to show minimum lengths disclosed by England in ¶ 0028, 0037, 0039) and a 9.5 or 7.5 millimetre support element and 10 or 12 millimetre aerosol-generating substrate taught by Farine (see calculations above based on ¶ 0047, 0072, 0075 of Farine), has an overall length of 46.5 millimetres (see Fig. 3 below, annotated by the examiner to show the article of the combination of England and Farine). The overall length of 46.5 millimetres falls within the claimed range of at least about 40 millimetres and less than 60 millimetres (MPEP § 2131.03).
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Figure 3, Annotated by Examiner, Showing Combination of England and Farine
Regarding claim 37, England discloses an aerosol-generating article (“article 301”, Fig. 3, ¶ 0043) for producing an inhalable aerosol upon heating (¶ 0050), the aerosol-generating article comprising:
a rod (“body of smokable material” 303, Fig. 3, that corresponds to “body of smokable material 103”, ¶ 0020, 0043) of aerosol-generating substrate (¶ 0050);
a hollow tubular segment (“cooling segment 307”, Fig. 3, ¶ 0044, that corresponds to “cooling segment 107”, ¶ 0026, 0043) at a location downstream of the rod (Fig. 3), the hollow tubular segment being in longitudinal alignment with the rod (Fig. 3), wherein the hollow tubular segment defines a cavity (“chamber”, ¶ 0026) extending from an upstream end of the hollow tubular segment to a downstream end of the hollow tubular segment (Fig. 3);
a mouthpiece segment (combination of “filter segment” 309 and “mouth end segment” 311, Fig. 3, that correspond to “filter segment 109” and “mouth end segment 111”, ¶ 0020, 0043) at a location downstream of the hollow tubular segment (Fig. 3), the mouthpiece segment comprising a plug of filtration material (“filter segment” 309, Fig. 3, that corresponds to “filter segment 109 [which] may be formed of any filter material”, ¶ 0032, 0043); and
a ventilation zone (“ventilation region 317”, Fig. 3, ¶ 0044) at a location along the hollow tubular segment (“ventilation holes may be located in the cooling segment 307”, Fig. 3, ¶ 0044), the ventilation zone comprising one or more rows of perforations (“one or more rows of holes”, Fig. 3, ¶ 0044) formed through a peripheral wall (“formed through the outer layer”, ¶ 0044) of the hollow tubular segment,
wherein the hollow tubular segment has a length of less than 25 millimetres (“at least 15 mm”, ¶ 0028),
wherein the rod of aerosol-generating substrate comprises at least an aerosol former (“aerosol forming agent, such as glycerol”, ¶ 0021), and
wherein the aerosol-generating article has a ventilation level of at least 15 percent (“ventilation ratio, is at least 15%”, ¶ 0071).
Since the range at least 15 percent overlaps the claimed ventilation level range of between 30 percent and 42 percent, a prima facie case of obviousness exists (MPEP § 2144.05(I)).
However, England does not explicitly disclose wherein a ratio between a weight of the hollow tubular segment and a volume of the cavity defined by the hollow tubular segment is less than 1 milligram/cubic millimetres, as England does not disclose a specific diameter to use in the calculation of the volume of the cavity defined by the hollow tubular segment.
Grant, in the same field of endeavor, discloses an aerosol-generating article with a hollow tubular segment with an external diameter of 7 mm (¶ 0039). Grant also teaches that the hollow tubular segment functions as an expansion chamber for aerosol generated in an aerosol-generating substrate (¶ 0028). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have made the hollow tubular segment taught by England with the known external diameter of 7 mm taught by Grant to obtain the benefit of the hollow tubular section functionality taught by Grant.
For determining the volume of the cavity defined by the hollow tubular segment, combining the 7 mm external diameter of the hollow tubular segment taught by Grant with the 0.29 mm thickness of the wall of the hollow tubular segment taught by England (see England, ¶ 0026) gives an internal diameter of the hollow tubular segment of 6.42 mm. Therefore, based on the 6.42 mm internal diameter of the hollow tubular segment taught by England in view of Grant and the 15 mm length of the hollow tubular segment taught by England (see England, ¶ 0028), the volume of the cavity defined by the hollow tubular segment is approximately 486 mm3.
For determining the weight of the hollow tubular segment, England teaches that the hollow tubular segment can be made of a spirally wound paper tube (¶ 0029), that the hollow tubular segment can be made of tipping paper (¶ 0030), and that a standard tipping paper is 58 gsm tipping paper (¶ 0025). Four spirally wound layers of 58 gsm tipping paper would achieve the disclosed thickness of the hollow tubular segment of 0.29 mm3 and correspond to a weight of approximately 77 mg, for a hollow tubular segment with 7 mm external diameter and 15 mm length.
Combining the volume of the cavity defined by the hollow tubular segment of approximately 486 mm3 with the weight of the hollow tubular segment of approximately 77 mg gives a ratio of approximately 0.16 mg/mm3, which is less than 1 mg/mm3.
England further discloses a distance between the ventilation zone and an upstream end of the hollow tubular segment between 7 and 10 mm (“the ventilation holes are located between 17 mm and 20 mm from the proximal end 313”, ¶ 0047-0048; see Fig. 3 below, annotated by the examiner; as shown in annotated Fig. 3, the ventilation holes are placed on the cooling segment 307, which corresponds to the hollow tubular segment, such that they are between 17 and 20 mm from the proximal end 313, which is between 7 and 10 mm from an upstream end of the hollow tubular segment). England in view of Grant teaches an equivalent internal diameter of the hollow tubular segment at the location of the ventilation zone of 6.42 mm, as discussed above. Therefore, a ratio between a distance between the ventilation zone and an upstream end of the hollow tubular segment and an equivalent internal diameter of the hollow tubular segment at the location of the ventilation zone is between 1.1 and 1.6, which is less than 4.
England also does not explicitly disclose that the rod of aerosol-generating substrate has an aerosol former content of at least about 10 percent on a dry weight basis.
Grant, in the same field of endeavor, teaches including an aerosol former content of approximately 20 percent on a dry weight basis in an aerosol-generating substrate (¶ 0047). Grant also teaches a benefit of including sufficient aerosol former content in the aerosol-generating substrate in that it facilitates conveying nicotine and flavour in an aerosol (¶ 0045). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have included the aerosol former taught by England at the level taught by Grant to achieve this benefit.
England discloses that the rod and the hollow tubular segment may be separated (“there may be a separation between the body of smokable material 103 and the cooling segment 107”, ¶ 0020) but does not explicitly disclose a support element between the rod and the hollow tubular segment and immediately upstream of the hollow tubular segment, the support element being a tubular element having an equivalent internal diameter smaller than an equivalent internal diameter of the hollow tubular segment, wherein the support element has a length of between 5 millimetres and 15 millimetres.
Farine, in the same field of endeavor, discloses a support element (“a support element, such as a hollow tube 24”, Fig. 2, ¶ 0072) between a rod of aerosol-generating substrate (“aerosol-forming substrate 22”, Fig. 2, ¶ 0072) and a hollow tubular segment (“transfer section 26”, Fig. 2, ¶ 0072) and immediately upstream of the hollow tubular segment (see Fig. 2), the support element being a tubular element having an equivalent internal diameter smaller than an equivalent internal diameter of the hollow tubular segment (see Fig. 2). Farine teaches a benefit to using a support element in that it assists in keeping the rod of aerosol-generating substrate toward a distal end of the aerosol-generating article (¶ 0074). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use a support element as taught by Farine between the rod and the hollow tubular segment and immediately upstream of the hollow tubular segment of England, the support element being a tubular element having an equivalent internal diameter smaller than an equivalent internal diameter of the hollow tubular segment, as taught by Farine, in order to obtain this benefit.
Farine also discloses wherein the support element has a length of 9.5 millimetres or 7.5 millimetres (the aerosol-generating article of Farine, “aerosol-generating article 20”, includes four segments: “aerosol-forming substrate 22”, “hollow tube 24”, “transfer section 26”, and “mouthpiece filter 28”, Fig. 2, ¶ 0072; the overall length of “aerosol-generating article 20” is 45 mm, ¶ 0047, 0072; the length of “aerosol-forming substrate 22” is 10 mm or 12 mm, ¶ 0047; the length of “transfer section 26” is 18 mm, ¶ 0075; the length of “mouthpiece filter 28” is 7.5 mm; therefore, “hollow tube 24”, which corresponds to the support element, has a length of 45 mm – (10 mm or 12 mm) – 18 mm – 7.5 mm = 9.5 mm or 7.5 mm). The lengths 9.5 millimetres and 7.5 millimetres both fall within the claimed range of between 5 millimetres and 15 millimetres (see MPEP § 2131.03).
England also does not explicitly disclose that the rod has a length of less than 20 millimetres and an overall length of the aerosol-generating article is at least about 40 millimetres and less than 60 millimetres (see Fig. 3 below, annotated by the examiner, displaying minimum lengths disclosed by England for each segment of the article, ¶ 0022, 0028, 0037, 0039; as shown in the annotated Fig. 3, body of smokeable material 303, which corresponds to the rod of aerosol-generating substrate, has a length of 34 mm, as described in ¶ 0022, 0043 of England, and the overall length of the aerosol-generating article is 61 mm, which is greater than 60 mm before including the additional length from adding a support element).
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Figure 3, Annotated by Examiner, Showing Minimum Lengths of England
Farine further discloses that the rod of aerosol-generating substrate has a length of 10 millimetres or 12 millimetres (“the aerosol-forming substrate may have a length of approximately 10 mm . . . the aerosol-forming substrate may have a length of approximately 12 mm”, ¶ 0047 of Farine), whereas England discloses that the rod of aerosol-generating substrate has a length of 34 millimetres (¶ 0022 of England). One of ordinary skill in the art would have understood that there was a benefit to shortening the length of the rod of aerosol-generating substrate in that it reduces the overall cost of manufacturing the article by reducing the amount of materials required. Therefore, 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 rod disclosed by England to have the shorter length taught by Farine, in order to achieve this benefit. Both 10 millimetres and 12 millimetres fall within the claimed range of less than 20 millimetres (MPEP § 2131.03).
The resulting aerosol-generating article taught by England in view of Farine, with a 12 millimetre mouthpiece segment and 15 millimetre hollow tubular segment taught by England (see Fig. 3 of England above, annotated by the examiner to show minimum lengths disclosed by England in ¶ 0028, 0037, 0039) and a 9.5 or 7.5 millimetre support element and 10 or 12 millimetre aerosol-generating substrate taught by Farine (see calculations above based on ¶ 0047, 0072, 0075 of Farine), has an overall length of 46.5 millimetres (see Fig. 3 below, annotated by the examiner to show the article of the combination of England and Farine). The overall length of 46.5 millimetres falls within the claimed range of at least about 40 millimetres and less than 60 millimetres (MPEP § 2131.03).
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Figure 3, Annotated by Examiner, Showing Combination of England and Farine
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to COURTNEY G CULBERT whose telephone number is (571)270-0874. The examiner can normally be reached Monday-Friday 9am-4pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H Wilson can be reached at (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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/C.G.C./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
1 Tipping paper with 58 gsm basis weight has 73 µm caliper (see Made-in-China Tipping Paper, https://binhao.en.made-in-china.com/product/jZiJxzEuODcL/China-Tipping-Paper-Cigarette-Gradual-Change-Effect-34-36GSM.html (accessed 2023)). Therefore, four layers of 58 gsm tipping paper would have an overall thickness of approximately 292 µm.
2 Tipping paper with 58 gsm basis weight has 73 µm caliper (see Made-in-China Tipping Paper, https://binhao.en.made-in-china.com/product/jZiJxzEuODcL/China-Tipping-Paper-Cigarette-Gradual-Change-Effect-34-36GSM.html (accessed 2023)). Therefore, four layers of 58 gsm tipping paper would have an overall thickness of approximately 292 µm.
3 Tipping paper with 58 gsm basis weight has 73 µm caliper (see Made-in-China Tipping Paper, https://binhao.en.made-in-china.com/product/jZiJxzEuODcL/China-Tipping-Paper-Cigarette-Gradual-Change-Effect-34-36GSM.html (accessed 2023)). Therefore, four layers of 58 gsm tipping paper would have an overall thickness of approximately 292 µm.