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 .
Response to Arguments
Applicant’s arguments, filed 03/09/2026, with respect to the rejection(s) of claim(s) 1-3, 5, 7, 9, 13, 14, 16, 17, 19-20, 22 and 23 under 35 U.S.C. §§ 102 and 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Campitelli et al. (US 2022/0007710).
Election/Restrictions
Applicant’s election without traverse of Claims 1-3, 5, 7, 9, 13, 14, 16, 17, 19, 20, 22, 23, and 25-30 in the reply filed on 09/19/2024 is acknowledged.
Claims 26-30 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 09/19/2024.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-3, 5, 7, 9, 13-14, 16-17, 19-20, 22-23 and 25 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Campitelli et al. (US 2022/0007710 A1) (“Campitelli”).
Regarding claim 1, Campitelli teaches: An article (aerosol-generating article 100) for use in a non-combustible aerosol provision system (aerosol-generating device 200), wherein aerosol-generating article 100 is configured to be received in aerosol-generating device 200 having heating element 230 that heats aerosol-generating article 100 without combustion to generate an aerosol (¶ [0405]; FIGS. 1–2).
The recitation “for use in a non-combustible aerosol provision system” does not impose a further structural limitation on the claimed article; nevertheless, Campitelli teaches an article configured for such use.
The article comprising a mouthpiece (mouthpiece 170) (¶ [0432]; FIGS. 9–10).
The mouthpiece comprising a body of material (tubular element 500 comprising gel 124), wherein tubular element 500 is received in a distal portion of mouthpiece 170 by interference fit (¶ [0432]; FIGS. 9–10).
Wherein the body comprises an aerosol-generating amorphous solid material (tubular element 500 comprising solid gel 124), wherein gel 124 is solid at room temperature, has a stable size and shape, does not flow, and may comprise an aerosol-former, including glycerine (¶ [0098]; FIGS. 9–10).
Under the broadest reasonable interpretation consistent with Applicant’s specification, which describes amorphous solid materials as including hydrogels comprising aerosol-generating agents, Campitelli’s solid gel 124 comprising an aerosol-former reads on the recited aerosol-generating amorphous solid material.
Campitelli additionally teaches that solid gel 124 is aerosol-generating because heating aerosol-generating article 100 causes tubular element 500 comprising gel 124 to generate an aerosol containing the active agent that exits proximal mouth end 101 (¶ [0406]; FIGS. 1–2).
Regarding claim 2, Campitelli teaches: The article of claim 1, wherein the body comprises a gathered sheet of amorphous solid material (tubular element 500 comprising porous medium loaded with gel 125, wherein the porous medium comprises sheet material that has been crimped and gathered together) (¶ [0501]; FIG. 40).
Regarding claim 5, Campitelli teaches: The article of claim 1, wherein the mouthpiece comprises a further section, wherein the further section is a body of fibrous material or a hollow tubular element (mouthpiece 170 comprising fluid guide 400, wherein fluid guide 400 includes inner longitudinal passageway 430) (¶ [0434]; FIGS. 9–10).
Wherein the mouthpiece comprises a mouth end and a distal end and the further section is positioned at the mouth end of the mouthpiece and the body is positioned at the distal end of the mouthpiece(mouthpiece 170 having proximal mouth end 101 and a distal portion, wherein fluid guide 400 is disposed toward proximal mouth end 101 and tubular element 500 comprising gel 124 is received by the distal portion of mouthpiece 170) (¶ [0432]; FIGS. 9–10).
Regarding claim 7, Campitelli teaches: The article of claim 5, wherein the further section is a first further section (fluid guide 400 having inner longitudinal passageway 430) (¶ [0434]; FIGS. 9–10), and wherein the mouthpiece additionally comprises a second further section comprising a body of fibrous material or a hollow tubular element (cellulose acetate tube 122 of tubular element 500 containing gel 124 in its core) (¶ [0444]; FIGS. 14–16), wherein the second further section is positioned at the distal end of the mouthpiece (tubular element 500 comprising cellulose acetate tube 122 received by a distal portion of mouthpiece 170) (¶ [0432]; FIGS. 9–10).
Regarding claim 16, Campitelli teaches: The article of claim 1, wherein the amorphous solid material is crimped (porous medium loaded with gel 125 comprising sheet material that has been crimped) (¶ [0501]; FIG. 40).
Regarding claim 17, Campitelli teaches: The article of claim 1, wherein the amorphous solid material comprises a flavorant, and wherein the flavorant is menthol (solid gel 124 comprising a flavourant, wherein the flavourant comprises menthol) (¶ [0253]).
And the amorphous solid material comprises from 0.1% to 65% menthol by dry weight (solid gel 124 comprising between 0.2% and 5% by weight menthol and between 5% and 25% by weight water). Campitelli teaches that the gel comprising an active agent comprises between 0.2% and 5% by weight of the active agent (¶ [0245]), that the active agent may be a flavourant comprising menthol (¶ [0253]), and that the gel comprises between 5% and 25% by weight water (¶ [0250]).
On a dry-weight basis, Campitelli’s minimum menthol concentration is calculated using 0.2% menthol and 5% water: 0.2 ÷95 ×100 = 0.21%.
Campitelli’s maximum menthol concentration is calculated using 5% menthol and 25% water: 5 ÷75 x 100 = 6.67%.
Thus, Campitelli teaches solid gel 124 comprising from 0.21% to 6.67% menthol by dry weight, which falls within the claimed range of 0.1% to 65% menthol by dry weight.
Regarding claim 20, Campitelli teaches: The article of claim 1, wherein the article further comprises the aerosol-generating amorphous solid material connected to the distal end of the mouthpiece (aerosol-generating article 100 comprising tubular element 500 containing solid gel 124, wherein tubular element 500 is received by the distal portion of mouthpiece 170 by interference fit) (¶ [0432]; FIGS. 9–10).
Regarding claim 22, Campitelli teaches: A system comprising an article (aerosol-generating article 100) comprising a mouthpiece (mouthpiece 170) comprising a body of material (solid gel 124 contained within tubular element 500 received in a distal portion of mouthpiece 170) (¶ [0432]; FIGS. 9–10).
Wherein the body comprises amorphous solid material (solid gel 124), wherein gel 124 is solid at room temperature, has a stable size and shape, and does not flow (¶ [0098]).
And a non-combustible aerosol provision device (aerosol-generating device 200 comprising heating element 230) for heating the aerosol generating material of the article (solid gel 124 comprising aerosol-former, including glycerine), wherein heating aerosol-generating article 100 causes tubular element 500 comprising gel 124 to generate aerosol containing the active agent (¶ [0406]; FIGS. 1–2).
Regarding claim 25, Campitelli teaches the system of claim 22 as set forth above, and further teaches: The system of claim 22, wherein the non-combustible aerosol provision device is configured to heat the aerosol generating material of the article to a maximum temperature of at least about 160 °C, or at least about 200 °C, or at least about 220 °C, or at least about 240 °C, or at least about 270 °C (aerosol-generating device 200 comprising heating element 230 configured to heat tubular element 500 comprising gel 124 to a temperature of 375 °C) (¶ [0469]; FIG. 20).
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.
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.
Claim(s) 3 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over (US 2022/0007710 A1) (“Campitelli”).
Regarding claim 3, Campitelli teaches: The article of claim 1, wherein the body comprises elongate material of amorphous solid material substantially aligned with a longitudinal axis of the article (tubular element 500 comprising threads loaded with gel 125, wherein the threads loaded with gel 125 run longitudinally and substantially parallel to the longitudinal axis of tubular element 500) (¶ [0498]; FIGS. 35–37).
Campitelli does not expressly teach that the longitudinally aligned gel-loaded material is in the form of strips.
However, Campitelli teaches that its gel may comprise solid tobacco material in the form of strips that release flavor compounds when heated (¶ [0106]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the longitudinally aligned gel-loaded material of Campitelli in the form of elongate strips, as expressly taught by Campitelli, because Campitelli identifies strips as a suitable physical form for solid tobacco material incorporated with the gel and the modification would merely select a disclosed elongate form for material arranged longitudinally in tubular element 500.
Regarding claim 9, Campitelli teaches: The article of claim 7, wherein both of the first further section and the second further section are hollow tubular elements (fluid guide 400 having inner longitudinal passageway 430 as the first further section, and tubular element 500 comprising cellulose acetate tube 122 containing gel 124 in its core as the second further section) (¶ [0434]; FIGS. 9–10; ¶ [0444]; FIGS. 14–16).
Campitelli does not expressly teach in the relied-upon embodiment that both hollow tubular elements comprise a paper tube or a hollow tubular element formed from filamentary tow.
However, Campitelli teaches: The first further section comprising a hollow tubular element formed from filamentary tow (first portion 410 of fluid guide 400, which defines a portion of inner longitudinal passageway 430 and may be formed from cellulose acetate tow) (¶ [0423]; FIGS. 5–6).
The second further section comprising a paper tube (tubular element 500 having longitudinal sides comprising crimped paper, such as crimped heat resistant paper or crimped parchment paper) (¶ [0471]; FIG. 20).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the first further section of Campitelli with a hollow portion formed from cellulose acetate tow and the second further section with crimped paper longitudinal sides, because Campitelli expressly teaches these materials as suitable constructions for the respective tubular components of its aerosol-generating article.
Claim(s) 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Campitelli et al. (US 2022/0007710 A1) (“Campitelli”) as applied to claim 1 above, and further in view of Capelli et al. (US 2022/0192249 A1) (“Capelli”).
Regarding claim 13, Campitelli teaches the article of claim 1 as set forth above.
Campitelli does not teach wherein the amorphous solid material has a thickness of between 0.015 mm and 0.5 mm, or between 0.1 mm and 0.3 mm, or between 0.15 mm and 0.25 mm.
Capelli teaches wherein the amorphous solid material has a thickness of between 0.015 mm and 0.5 mm, or between 0.1 mm and 0.3 mm, or between 0.15 mm and 0.25 mm (aerosol-generating film having a thickness between about 0.1 mm and about 0.5 mm, or between about 0.15 mm and about 0.3 mm) (¶ [0050]). Capelli teaches that the aerosol-generating film is a solid laminar element and is suitable for release of aerosol upon heating (¶¶ [0020], [0030], [0060]).
Campitelli and Capelli are in the same field of endeavor because Campitelli relates to a tubular element comprising gel for use with an aerosol-generating article, and Capelli relates to a heated aerosol-generating article comprising an aerosol-generating film.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the aerosol-generating amorphous solid material of Campitelli with the thickness taught by Capelli because Capelli teaches that a relatively thin aerosol-generating solid material maximizes surface area relative to weight, improves release of volatile components upon heating, and decreases thermal inertia to improve aerosol generation efficiency (¶ [0050]).
Regarding claim 14, Campitelli teaches the article of claim 1 as set forth above.
Campitelli does not expressly teach wherein the amorphous solid material is laminated on a supporting material of paper or foil.
Capelli teaches wherein the amorphous solid material is laminated on a supporting material (aerosol-generating film formed by applying an aqueous film-forming composition onto a sheet material and drying the film layer on the sheet material) (¶ [0123]), wherein the supporting material is paper (the sheet material is cellulose-based paper) (¶ [0124]).
Campitelli and Capelli are in the same field of endeavor because Campitelli relates to a tubular element comprising gel for use with an aerosol-generating article, and Capelli relates to a heated aerosol-generating article comprising an aerosol-generating film.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the aerosol-generating amorphous solid material of Campitelli laminated on a supporting material of paper, as taught by Capelli, because Capelli teaches that the tubular carrier element supports and affixes the aerosol-generating film in place during use and provides a convenient way to incorporate the aerosol-generating film into an aerosol-generating article (Capelli ¶ [0031]).
Claim(s) 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Campitelli et al. (US 2022/0007710 A1) (“Campitelli”) as applied to claim 1 above, and further in view of Chong et al. (US 2019/0200677 A1) (“Chong”).
Regarding claim 23, Campitelli teaches the system of claim 22 as set forth above.
Campitelli does not expressly teach wherein the non-combustible aerosol provision device comprises a coil.
Chong teaches wherein the non-combustible aerosol provision device (aerosol producing device 200 comprising induction heating element 160) comprises a coil (conductor 162 wrapped around into a coil), wherein the coil generates a magnetic field when current is passed through the coil to heat susceptor 106 of the consumable-containing package 102 (¶ [0065]; FIGS. 8A–8B).
Campitelli and Chong are in the same field of endeavor because Campitelli relates to an aerosol-generating device using inductive heating to heat a tubular element comprising gel (Campitelli ¶ [0335]), and Chong relates to an aerosol producing device using an induction heating element to heat a consumable-containing package without combustion (Chong ¶ [0065]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the non-combustible aerosol provision device of Campitelli with the coil of Chong because Campitelli teaches inductively heating its gel-containing tubular element, and Chong teaches a coil as a suitable induction heating element for generating the magnetic field used to heat aerosol-generating material without combustion.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER KESSIE whose telephone number is (571)272-7739. The examiner can normally be reached Monday - Thursday 7:00am - 5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H 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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/JENNIFER A KESSIE/Examiner, Art Unit 1747
/Michael H. Wilson/
Supervisory Patent Examiner, Art Unit 1747
Prosecution Insights