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 .
Status of the Claims
Claims 1, 3-7, 21-22, and 27-32 are pending and are subject to this Office Action. Claims 1 and 4 have been amended.
Response to Amendment
The Examiner acknowledges Applicant’s response filed on 5/28/2026 containing
amendments and remarks to the claims.
The objection to claim 4 has been withdrawn due to the claim amendment.
Response to Arguments
Applicant’s arguments, see pages 4-6, filed 5/28/2026, with respect to the rejection(s) of claim(s) 1 under 35 USC 103 have been fully considered and are persuasive. The Applicant has amended claim 1 to require wherein the carrier constituent comprises triethyl citrate, whereas previously this was not required. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of newly found art and previously applied art.
The following is a modified rejection based on the amended claims.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (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 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.
Claim(s) 1, 4, 6-7, 21-22, and 27-30, and 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lopez (US2018/0289062) in view of Fraser (US2019/0133186) and Naheed (US2017/0021025).
Regarding claim 1, Lopez discloses:
An article (cartomizer 18) for use with an aerosol provision system (electronic cigarette 2), the article comprising a store (fluid storage compartment 4) comprising an aerosolizable material (cannabinoid formulation, [0164]-[0165], figures 7-8).
Wherein the aerosolizable material comprises at least one cannabinoid and at least one carrier constituent (cannabinoids in a carrier, [0141]-[0142]).
However, Lopez does not appear to disclose (I) a wick, (II) wherein the wick is formed from a sintered material and wherein the sintered material is a ceramic material, and (III) wherein the carrier constituent comprises triethyl citrate.
In regard to (I), Lopez further teaches the electronic cigarette comprises a fluid storage compartment and a heater ([0073]).
Fraser, directed to an electronic aerosol provision system, teaches:
Electronic cigarettes typically include a reservoir of a source liquid, and a heater or heating element powered by a battery which acts to vaporize the source liquid. A wick may be used to deliver source liquid to the heating element for the vaporization process [0003].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the electronic cigarette of Lopez by incorporating a wick as taught by Fraser, because both Lopez and Fraser are directed to electronic cigarettes with a liquid reservoir and a heater to vaporize the liquid, Fraser teaches a wick may be used to deliver source liquid to the heating element, and this merely involves incorporating a known element to deliver liquid to a heating element for vaporization (i.e. wick) to a similar electronic cigarette to yield predictable results.
In regard to (II), Fraser further teaches:
The wick may be formed by sintering porous ceramic to create a porous wick with the heating element embedded in it [0054].
This gives close contact between the heating element and the wick at the vaporization surface [0054].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the wick of modified Lopez to be formed from a sintered ceramic material as taught by Fraser, because both Lopez and Fraser are directed to electronic cigarettes with a liquid reservoir and a heater to vaporize the liquid, Fraser teaches forming a wick in this manner gives close contact between the heating element and the wick at the vaporization surface, and this merely involves incorporating a known type of wick to a similar electronic cigarette to yield predictable results.
In regard to (III), Lopez further teaches cannabinoids dissolved in a solvent comprised of glycerol, vegetable glycerin, propylene glycol, trimethylene glycol, water, or ethanol.
Lopez does not teach wherein the carrier constituent comprises triethyl citrate.
However, Naheed, directed to a medication dispensing system, teaches:
A delivery system that can handle water insoluble drugs like cannabinoids ([0014]) with carriers such as propylene glycol, triethyl citrate, and glycerol (plasticizers, [0334]-[0336]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the carrier constituent of Fraser to comprise triethyl citrate as taught by Naheed, as both Lopez and Naheed are directed to cannabinoid formulations with carrier constituents, and the selection of a known material based on its suitability for its intended use supports prima facie obviousness. See MPEP § 2144.07.
Regarding claim 4, Lopez further teaches wherein the article comprises an aerosol generating component ([0073]: heater).
Regarding claim 6, modified Lopez further teaches wherein the aerosol generating component and the wick are separated components (Fraser teaches the heating element is a wire that is embedded in the wick [0054], and as such it is evident that the wick and the heating element are separate components).
Regarding claim 7, Lopez is silent to the turbidity of the aerosolizable material. However, as discussed above, modified Lopez is considered to disclose a compositionally equivalent aerosolizable material comprising at least one cannabinoid, at least one carrier constituent, and wherein the carrier constituent comprises triethyl citrate. It follows that with the same compounds in overlapping amounts, the composition of Lopez would be expected to have the same properties including turbidity as claimed by the Applicant since the same composition is expected to have the same properties. See MPEP § 2112.01, II. Therefore, as Lopez teaches the same aerosolizable material as claimed, the material of Lopez is considered to have overlapping turbidity with the claimed turbidity, absent evidence to the contrary.
Regarding claim 21, Lopez further teaches wherein the cannabinoid is cannabidiol ([0190]: an example where the cannabinoid is CBD).
Regarding claim 22, Lopez further teaches wherein the cannabinoid is present in an amount of 5 mg/ml of the aerosolizable material or more (An example teaches 6 g cannabinoid extract and 6 mL of carrier are added toa beaker to make the formulation [0174], which is greater than 5 mg/mL of the aerosolizable material).
Regarding claims 27-28, Lopez further teaches wherein the aerosolizable material further comprises one or more active constituents in addition to the cannabinoid and wherein the one or more active constituents is an olfactory active constituent ([0007]: flavorants).
Regarding claim 29, Lopez further teaches an aerosol provision system (electronic cigarette 2) comprising an aerosol provision device (body 14) and an article as defined in claim 1 ([0164]).
Regarding claim 30, Lopez further discloses water as an optional constituent in the formulation ([0057]) and therefore it would be obvious to one of ordinary skill in the art that Lopez discloses a formulation comprising substantially no water.
Regarding claim 32, Lopez further teaches where the at least one cannabinoid is an isolate having a purity of greater than 98% ([0008]: greater than about 99% pure).
Claim(s) 3 and 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lopez (US2018/0289062) in view of Fraser (US2019/0133186) and Naheed (US2017/0021025) as applied to claims 1 and 5 above, and further in view of Duque (US2018/0177240, cited in IDS dated 04/08/2022.
Regarding claims 3 and 5, modified Lopez does not appear to disclose wherein the sintered material comprises metal fibers.
Duque, directed to a thermal wick for electronic vaporizers, teaches:
A thermal wick reduces or eliminates hot spots and also has an increased heat-up time [0022].
The thermal wick may be a ceramic wick in a tube or cylinder form with thermally conductive particles (e.g., copper flakes or pieces) embedded or dispersed throughout [0033].
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the sintered ceramic wick of modified Lopez by incorporating thermally conductive particles to form a thermal wick as taught by Duque, because both Lopez and Duque are directed to aerosol generating devices with a heater to vaporize a liquid, Duque teaches thermal wicks reduce hot spots and have an increased heat-up time, and this merely involves incorporating a known type of wick to a similar aerosol-generating device to yield predictable results.
The sintered ceramic wick having thermally conductive particles defines where the sintered material may have electrical properties that when a current is passed through it is heated. The Applicant teaches this defines where the aerosol generating component and the wick may be considered to be integrated (see second paragraph of page 5 of the instant specification) and therefore reads on claim 5.
Duque further teaches other thermally conductive materials such as stainless steel fibers [0039]. As such, it would be obvious for one of ordinary skill in the art to make the thermally conductive particles be stainless steel fibers, and thus wherein the sintered material comprises metal fibers as recited in claim 3, because the selection of a known material based on its suitability for its intended use supports prima facie obviousness. See MPEP § 2144.07.
Claim(s) 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lopez (US2018/0289062) in view of Fraser (US2019/0133186) and Naheed (US2017/0021025) as applied to claim 4 above, and further in view of Bohne (WO2019/072969, citations refer to the English equivalent US2021/0195952).
Regarding claim 31, modified Lopez does not appear to disclose where the wick meets the aerosolizable material at a store contact site and the pore size at the store contact site is different from the pore size proximate to the aerosol generating component.
Bohne, directed to an evaporator for an electronic cigarette product, teaches:
The liquid is typically supplied to the heating body in a capillary manner by means of a wick [0002].
So that the part of the wick structure on the inlet side of the heating body is uniformly supplied with liquid, it is advantageous to transport the liquid there more slowly and uniformly than in the region of the wick structure which is more distant from the heating body and closer to the liquid store. Consequently, the wick regions advantageously have a pore/capillary size gradient from large to small in the direction towards the heating body ([0008]), which is considered to read on a wick that meets the aerosolizable material at a store contact site and the pore size at the store contact site is different from the pore size proximate to the aerosol generating component.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the wick of modified Lopez to have a pore size gradient from large to small in the direction towards the heating body as taught by Bohne, because both modified Lopez and Bohne are directed to aerosol generation devices with wicks that transport liquid to a heater, Bohne teaches this allows the wick on the inlet side of the heating body to be uniformly supplied with liquid, and this merely involves incorporating a known type of wick (i.e. one with a pore gradient) to a similar wick of an aerosol generation device to yield predictable results.
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 Nicole A Szumigalski whose telephone number is (703)756-1212. The examiner can normally be reached Monday - Friday: 8:00 - 4:30 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at (571) 270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.A.S./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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