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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 2, 2026 has been entered.
Response to Amendment
Claim 11 is previously cancelled. Claims 14-18 are previously withdrawn. Claims 20 and 21 are newly added. Claims 1-10, 12-13, and 20-21 are presently examined.
Response to Arguments
Applicants remarks and amendments filed January 2, 2026 with respect to §103 rejections have been fully considered but they are not persuasive.
Applicant argues, Section A pgs 8-9, In the Office Action, the heat resistant hollow section housing 3 of Liu has been improperly likened to the presently claimed first hollow tubular body. Claim 1 defines that the at least one ventilation area is arranged to provide external air into the first hollow tubular body. However, in Liu, the heat absorbing layer 9 is arranged inside of the heat resistant hollow section housing 3 outer layer, and is illustrated as covering/blocking the vent hole 5. Therefore, it is not evident from Liu that the vent hole 5 would provide external air to flow into the heat resistant hollow section housing 3. Furthermore, because the heat absorbing layer 9 is arranged inside of and coats an inner surface of the outer heat resistant hollow section housing 3, it effectively blocks and covers the inside of the heat resistant hollow section housing 3. Thus, even if the vent hole 5 were to extend through both the heat resistant hollow section housing 3 and also the heat absorbing layer 9, external air would flow into the hollow section 4 formed by the heat absorbing layer 9, rather than flowing into the heat resistant hollow section housing 3. That is, air could not flow into the heat resistant hollow section housing 3 per se, because it is covered and blocked. The hollow section 4 is defined by the heat absorbing layer 9, not by the heat resistant hollow section housing 3. Accordingly, the vent hole 5 of Liu is not arranged to provide external air into the heat resistant hollow section housing 3. Thus, none of the embodiments of Liu disclose an article in which at least one ventilation area is arranged to provide external air into a first hollow tubular body as defined in independent claim 1.
The Examiner respectfully disagrees. As shown in the rejections below, Liu discloses in Embodiment 2 a perforation treatment is performed at a certain position on the heat-resistant hollow section housing (3), thereby forming a vent hole (5) (reads over at least one ventilation area) in communication with the hollow layer for heat-resistant hollow section (4). When such a tobacco rod is consumed by peripheral heating, the hot air flows in the heated tobacco section (2) flows into the hollow layer for heat-resistant hollow section (4) along the tobacco rod direction and is mixed with the cold air in the hollow layer for heat-resistant section (4), the outer cold air (reads over external air) entering from the vent hole (5) is mixed together with the hot air flow in the tobacco section (2) (¶[0032]). Liu’s Embodiment 2 specifically discloses the at least one ventilation area is arranged to provide external air into the hollow tubular body as discussed above and in the rejections below.
Applicant argues, Section B pgs 9-10, Lisan is not directed towards a similar hollow tubular body as asserted. On the contrary, the heat resistant hollow section housing 3 of Liu provides for heat resistance to lower the temperature and reduce heat-caused collapse of the filter tip material. On the other hand, the tubular core 1 of Lisan is a filter element for a smoking article. Although both Liu and Lisan relate to the field of smoking articles, it would be clear to a person of ordinary skill in the art that a heat resistant element for lowering the vapor temperature has a completely different purpose/function (and hence configuration) to a filter element. Applicant further argues filter elements provide a filtration effect and that the filtration effect is completely different to providing heat resistance in order to reduce vapour temperature and avoid heat caused collapse of a filter tip material as with the tubular element of Liu, which has a completely different purpose structurally and thermodynamically. Liu and Lisan are not directed towards similar tubular bodies. Lisan does not teach tubular bodies with the same or similar purpose. They are not similar products, nor do they have similar technical functionalities – so they are not compatible to be interchanged as suggested in the Office Action. The filter of Lisan is not suitable to be applied as a heat resistant tube in Liu.
The Examiner respectfully disagrees. Liu discloses the heat-resistant hollow section housing (3) of the heat-resistant hollow section may be made of a high temperature-resistant material, for example, a high temperature-resistant fibrous material, ceramic material, non-woven fabric, or paper, where the fibrous material may be various fibrous materials that can resist a certain high temperature, such as natural fiber, artificial fiber, etc. (¶[0028]). Artificial fiber reads over filamentary tow (e.g., cellulose acetate, see Specification page 8, lines 16-17).
Therefore, one of ordinary skill in the art would reasonably be suggested the heat resistance functionality of the heat-resistant hollow section housing (3) of Liu is based upon the high temperature-resistant material the hollow tubular structure is formed from.
Additionally, Lisan teaches a cellulose acetate hollow tubular element comprising a wall density between 0.25g/cc and 0.75g/cc, or between 0.25g/cc and 0.65g/cc or between 0.35g/cc and 0.65g/cc. Specifically, Lisan discloses “0.25 to 0.41 g/cc” (¶[0008]).
In response to applicant's argument, Sections B and C, to the completely different purpose/function of the tubular structures of Liu and Lisan, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In the instant case, there is nothing to prevent the substitution of the cellulose acetate hollow tubular element of Lisan for the high temperature-resistant hollow section housing of Liu since the tubular structures of Liu and Lisan can be made from cellulose acetate fibers as discussed above and in the rejections below. As the tubular structure of Lisan is made from the same material of the high-temperature resistant hollow section of Liu, the acetate cellulose tubular structure of Lisan can function as a heat-resistant hollow section when combined in Liu. “Case law holds that a material and its properties are inseparable. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).”
As stated in the rejections below, it would be obvious to combine Liu with Lisan because Liu does not teach suitable densities of hollow tubular bodies and a person of ordinary skill in the art would have been motivated to look to a similar reference to find suitable hollow tubular body wall densities. Lisan is directed to a similar smoking device with hollow tubular body sections/bodies and Lisan teaches known hollow tubular body wall densities that are suitable for a similar product and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Applicant argues in section D the claimed tubular body is hollow, meaning it has nothing arranged inside it and the heat-resistant hollow housing 3 is not hollow because the heat-absorbing layer 9 is arranged on its inner surface and hence inside it. Applicant further argues construing both the heat-resistant hollow section housing 3 and the heat absorbing layer 9 together to be a hollow tubular body, it is clear that the density of the heat-absorbing layer 9 should be taken into account, as well as the density of heat-resistant hollow housing 3. Regardless of whether or not the heat-absorbing layer were to be partially absorbed into the heat-resistant hollow section housing 3, the heat-absorbing layer 9 itself will inevitably have a thickness and a density and should be taken into account.
The Examiner respectfully disagrees. Liu discloses the heat-resistant hollow section is constructed by a heat-resistant hollow section housing 3, a heat-absorbing layer 9 and a hollow layer for heat-resistant hollow section 4, the hollow layer for heat-resistant section 4 is a hollow structure (Fig. 1, ¶[0028]). The heat-resistant hollow section housing 3 is shown as a hollow tubular structure in Fig. 1. Further, Applicant presents no evidence to support the heat-absorbing layer increases the density of the heat-resistant hollow section housing 3 wall. Due to the comprising nature of the claims, there is nothing to prevent the addition of a heat-absorbing phase-change layer to an inner layer of the claimed hollow tubular body.
In response to applicant's argument in section E the Examiner has not provided any explanation as to how the heat-resistant hollow section housing 3 of Liu could allegedly be swapped out with the cigarette filter of Lisan, while retaining the heat-absorbing layer 9, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Applicant’s arguments are found not persuasive for the reasons stated above.
Specification
The amendment filed June 16, 2022 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The incorporation by reference to the foreign priority document in the related applications section added to page 1 of the specification is improper because it was added subsequent to the December 21, 2020 international filing date of this national stage application and therefore it either has no effect (all subject matter already in the national stage application) or it adds new matter (MPEP § 217 (II)(G)) and § 608.01(p)(I)(B)) (delete “each of which is hereby fully incorporated herein by reference,” see specification page 1 line 7). Applicant is required to cancel the new matter in the reply to this Office action.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 4, 8, 12, and 21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 4 and 21 recite the limitation "the first hollow tubular body" in line 1 of each claim. Claim 1, which claims 4 and 21 depend from, recites “a hollow tubular body”. There is insufficient antecedent basis for this limitation in the claim.
Regarding claims 8 and 12: A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).
In the present instance:
Claim 8 recites the broad recitation the hollow tubular body comprises triacetin in an amount less than about 16% by weight, and the claim also recites triacetin in an amount about 15% by weight of the hollow tubular body, or about 13% by weight of the hollow tubular body which are all narrower statements of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For the purposes of examination and compact prosecution, the triacetin limitation will be considered met if the amount of triacetin is in an amount less than about 16% by weight.
Claim 12 recites the broad recitation the hollow tubular member has a length less than 20 mm and the claim also recites less than 19 mm, or less than 18 mm which are all narrower statements of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For the purposes of examination and compact prosecution, the thickness limitation will be considered met if the hollow tubular member has a length less than 20 mm.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-4, 10, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (CA3063952, cited on IDS dated 6/12/2022), in view of Lisan (US 2016/0106147).
Regarding claim 1, Liu discloses a smokeless cigarette having a decreased vapor temperature wherein the smokeless cigarette can better fit with a peripheral heater (abstract); in particular to a low temperature cigarette having a decreased vapor temperature (¶[0001]). For a low temperature cigarette, the tobacco is heated by an outer heating element and tobacco smoke is generated by heating rather than by burning (¶[0002]); the heat resistant hollow section can be a better fit for a peripheral heater and avoid the collapse of the cigarette holder (reads over for use as part of a non-combustible aerosol-provision system) (¶[0019]). The low temperature cigarette (reads over an article) comprises a tobacco section (2). Tobacco is an aerosol-generating material (instant specification pg 4, ln 9-11); and a heat resistant hollow tube section housing (3) (i.e. a hollow tubular body) sequentially connected (see annotated Fig. 4 below) (reads over disposed downstream of the tobacco section) (Fig. 4 ¶[0042]). The tobacco section (2) contains tobacco shreds, tobacco slices, an atomizing agent, a tobacco extract, tobacco flavors and essences, where the atomizing agent consists of glycerol and ethylene glycol (reads over at least one aerosol forming material) (¶[0033]).
Liu discloses the heat-resistant hollow section housing (3) has a wall thickness of 0.5 – 1.1 mm (¶[0012]) which overlaps with the claimed range of greater than about 0.5 mm. Absent a showing of unexpected results, it would have been obvious to one of ordinary skill in the art to select any point within the range taught by Liu. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Liu discloses in Embodiment 2 a perforation treatment is performed at a certain position on the heat-resistant hollow section housing (3), thereby forming a vent hole (5) (reads over at least one ventilation area) in communication with the hollow layer for heat-resistant hollow section (4). When such a tobacco rod is consumed by peripheral heating, the hot air flow in the heated tobacco section (2) flows into the hollow layer for heat-resistant hollow section (4) along the tobacco rod direction and is mixed with the cold air in the hollow layer for heat-resistant section (4), the outer cold air (reads over external air) entering from the vent hole (5) is mixed together with the hot air flow in the tobacco section (2) (¶[0032]). This reads over the at least one ventilation area is arranged to provide external air into the hollow tubular body.
Regarding claims 1 and 21, Liu fails to explicitly disclose the hollow body comprises a density between about 0.25 g/cc to about 0.75 g/cc (claim 1); the first hollow tubular body comprises a density of between 0.25 g/cc and 0.75 g/cc (claim 21).
Lisan teaches a cellulose acetate hollow tubular element comprising a wall density between 0.25g/cc and 0.75g/cc, or between 0.25g/cc and 0.65g/cc or between 0.35g/cc and 0.65g/cc. Specifically, Lisan discloses “0.25 to 0.41 g/cc” (¶[0008]).
Therefore, it would have been obvious for a person of ordinary skill in the art before the filing date of the claimed invention to practice the invention of Liu heat-resistant hollow section housing wall density to have the hollow tubular element wall density range of Lisan because Lisan specifically teaches 0.24 to 0.41 g/cc to be a suitable wall density for a hollow tubular element. This reads over the density limitations of Claims 1 and 21.
Additionally, it would be obvious to combine Liu with Lisan because Liu does not teach suitable densities of hollow tubular bodies and a person of ordinary skill in the art would have been motivated to look to a similar reference to find suitable hollow tubular body densities. Lisan is directed to a similar smoking device with hollow tubular body sections/bodies made from the same material of the high-temperature resistant hollow section of Liu as discussed in the rejection above. Lisan teaches known hollow tubular body wall densities that are suitable for a similar product and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success. [W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." See MPEP 2144.05(II)(A).
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Regarding claim 2, Liu discloses a filter tip (1) (reads over a cylindrical body) is sequentially connected (See annotated Fig. 4) in the low temperature cigarette, that is, the filter tip is connected between the filter tip housing (6) and the heat resistant hollow tube section housing (3) (Liu Fig. 4, ¶[0042]). This reads over the claim.
Regarding claim 3, Liu discloses a hollow filter tip housing (6) (reads over a second hollow tubular body) is sequentially connected (see annotated Fig. 4) in the low temperature cigarette, that is, the hollow filter tip housing (6) is connected between the filter tip housing (6) and the heat resistant hollow tube section housing (3) (Liu Fig. 4, ¶[0042]) (Fig. 4, ¶[0042]). This reads over the claim.
Regarding claim 4, Liu discloses in Embodiment 1 the heat resistant hollow section (3) may be made of a high temperature-resistant material, for example, a high temperature-resistant fibrous material, ceramic material, non-woven fabric or paper, where the fibrous material may be various fibrous materials that can resist a certain high temperature, such as a natural fiber, artificial fiber, etc. (¶[0028]). Artificial fiber reads over filamentary tow (e.g., cellulose acetate tow fiber, see Applicant’s as-filed Specification page 8, lines 16-17). This reads over the first hollow tubular body is formed from paper or filamentary tow limitations of the claim.
Regarding claim 10, Liu discloses the hollow filter tip housing (6) is disposed at the furthest downstream end of the cigarette as shown in annotated Fig. 4 above. This reads over the claim.
Claims 5, 7, and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (CA3063952, cited on IDS dated 6/12/2022), in view of Lisan (US 2016/0106147) as applied to claim 1 above, and further in view of Malgat (US 2016/0331032).
Modified Liu teaches all the claim limitations as set forth above.
Regarding claim 5, modified Liu does not explicitly teach a hollow tubular member disposed upstream of the hollow tubular body.
Malgat teaches a heated aerosol-generating article for use with an aerosol-generating device (abstract). The heated aerosol-generating article (10) comprises four elements arranged in coaxial alignment: an aerosol-forming substrate (20), a support element (30) (reads over a hollow tubular member), an aerosol-cooling element (40) and a mouthpiece (50) (Fig. 1, ¶[0121]). The support element (30) locates the aerosol-forming substrate (20) at the extreme distal end (80) of the aerosol-generating article (10) so that it can be penetrated by heating element of the aerosol-generating device and also prevent the aerosol-forming substrate (20) from being forced downstream with the aerosol-generating article (10) towards the aerosol-cooling element (40) when a heating elment of an aerosol-generating device is inserted into the aerosol-forming substrate (20) (¶[0124]). The aerosol-cooling element (40) is located immediately downstream of the support element (30) (¶[0125]); vice versa, this means the support element is located immediately upstream of the aerosol-cooling elment (40). See also Fig. 1. Additionally, Malgat ¶[0071] teaches the support element comprises a hollow tubular element.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to practice the invention of modified Liu to include a support element comprising a hollow tubular element located immediately upstream of the aerosol-cooling element (Liu’s “hollow tubular body”) as taught by Malgat which prevents the aerosol-forming substrate from being forced downstream withing the aerosol-generating article when a heating element of an aerosol-device is inserted into the aerosol-forming substrate.
Regarding claim 7, modified Liu does not explicitly teach the hollow tubular member is formed from paper, plastic, or filamentary tow.
Malgat teaches the hollow support element (30) may be formed from any suitable material or combination of materials such as one or more materials selected from the group consisting of: cellulose acetate; cardboard; crimped paper, such as crimped heat resistant paper or crimped parchment paper; and polymeric materials, such as low density polyethylene (LPDE) (¶[0070]). In a preferred embodiment, the support element is formed from cellulose acetate (¶[0071]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to practice the invention of modified Liu to include the hollow tubular body of Liu formed of cellulose acetate as Malgat exemplifies acetate cellulose as a suitable material for such purpose.
Regarding claim 12, modified Liu does not explicitly teach the hollow tube member has a length of less than 20 mm, or less than 19 mm, or less than 18 mm.
Malgat teaches the hollow support element (30) may have a length between approximately 5 mm and approximately 15 mm (¶[0074]).
It would have been obvious for a person of ordinary skill in the art before the filing date of the claimed invention to practice the invention of modified Liu to have a range of the support element length as taught by Malgat which is completely overlapped by the claimed range. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Regarding claim 13, modified Liu does not explicitly teach the aerosol generating material section has a length greater than a length of the hollow tubular member.
Malgat teaches the aerosol forming substrate (reads over aerosol generating material section) may have a length of between approximately 7 mm and approximately 15 mm with a preferred length of approximately 12 mm (¶[0067]); the support element (30) may have a length between approximately 5 mm and approximately 15 mm and may have a preferred length of approximately 8 mm (¶[0074]). See also Fig. 1 which shows the length of the aerosol forming substrate is greater than the length of the support element. See also Fig. 1 which depicts the length of the aerosol forming substrate (20) is greater than the length of the support element (30).
It would have been obvious for a person of ordinary skill in the art before the filing date of the claimed invention to practice the invention of modified Liu such that the aerosol forming substrate length is greater than the length of the support element because Malgat exemplifies the aerosol generating section length is greater than the support section length.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Liu (CA3063952, cited on IDS dated 6/12/2022), in view of Lisan (US 2016/0106147), in view of Malgat (US 2016/0331032) as applied to claim 5 above, and further in view of Baggett, Jr. et al. (US 5,915,387).
Regarding claim 6, modified Liu does not explicitly teach the hollow tubular member has a wall thickness less than about 1.5 mm.
Baggett teaches a cigarette adapted for use in an electrical cigarette system (abstract) (i.e. an article for use with a non-combustible aerosol provision device). The cigarette (23) has an essentially constant diameter along its length and, which like more traditional cigarettes, is preferably between approximately 7.5 mm and 8.5 mm in diameter (col. 8 lines 30-34). The cigarette (23) further comprising a free-flow filter (74) (Fig. 4A, col. 8 lines 53-54) (reads over the hollow tubular member). The inside diameter for the free-flow filter is between 2 to 6 mm and the minimum outside diameter is 7.5 mm (col. 8 lines 30-34), so the wall thickness of the free-flow filter is at least 0.750 mm ((7.5 mm – 6 mm) ÷ 2).
It would have been obvious for a person of ordinary skill in the art before the filing date of the claimed invention to practice the invention of modified Liu to have the support element of modified Liu (modified Liu’s hollow tubular member) have a wall thickness of at least 0.750 mm which is completely overlapped by the claimed range. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Claims 8 is rejected under 35 U.S.C. 103 as being unpatentable over Liu (CA3063952, cited on IDS dated 6/12/2022), in view of Lisan (US 2016/0106147) as applied to claim 1 above, and further in view of Melia (US 2020/0397037).
Regarding claim 8, modified Liu teaches all the claim limitations as set forth above.
Modified Liu does not explicitly teach the hollow tubular body comprises triacetin in an amount less than about 16% by weight of the hollow tubular body, or less than about 15% by weight of the hollow tubular body, or less than about 13% by weight of the hollow tubular body.
Melia teaches a mouthpieces and/or filters, especially for cigarettes and Tobacco Heating Products (¶[0001]). The filter element (e.g. for use in a smoking article) comprising a longitudinally extending (e.g. cylindrical) tubular rod of filtering material having inner and outer surfaces (reads over a hollow tubular body) (¶[0014]). The filter element has an amount of plasticiser present from 15% to 18.3% by total weight of the filtering material (¶[0026]). The applicants found that this low level of plasticiser improves the quality of the mouthpiece or filter element by preventing the formation of voids resulting from plasticiser melting the cellulose acetate fibers (¶[0027]). The mouthpiece is used as filter for a smoking article (¶[0037]); the filtering material may be natural or synthetic filamentary tow, preferably the filtering material comprises cellulose acetate filamentary tow (¶[0038]). The fibers may be cellulose acetate tow which has been plasticized with triacetin or triethyleneglycol diacetate (TEGDA) (¶[0039]).
The range of triacetin taught by Melia overlaps the claimed range of about 15% by weight of the hollow tubular body which improves the quality of the filter element by preventing the formation of voids resulting from plasticiser melting the cellulose acetate fibers. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Liu (CA3063952, cited on IDS dated 6/12/2022), in view of Lisan (US 20160106147), in view of Malgat (US 2016/0331032) as applied to claim 5 above, and further in view of Melia (US 2020/0397037).
Regarding claim 9, modified Liu does not explicitly teach wherein the hollow tubular member has a first inner diameter, and the hollow tubular member has a second inner diameter, and the first inner diameter is greater than the second inner diameter.
Melia teaches a mouthpieces and/or filters, especially for cigarettes and Tobacco Heating Products (¶[0001]). The filter element (e.g. for use in a smoking article) comprising a longitudinally extending (e.g. cylindrical) tubular rod of filtering material having inner and outer surfaces (reads over a hollow tubular member) (¶[0014]). The longitudinally extending rod of filtering material may be of uniform cross-section along its full length with the inner surface of the annular cross-section defining the channel (¶[0028]). Mouthpieces or filters having a non-cylindrical channel, particularly those channel filters (e.g. hollow tubular filters) having a complex and/or unsymmetrical cross-sectional profile may be of particular use in combatting anti-counterfeiting.
The channel may be, for example, of circular, semi-circular (D-shaped), hollow star shaped, trilobal, pentagonal, hexagonal (see Fig 2A), octagonal (see Fig. 2B), hollow star shaped cross-section with 12 points (see Fig. 2C), hollow star shaped cross-section with 10 points and rounded ends (Fig. 2D) or of cog-shaped cross-section, or other pattern. Channel mouthpieces or filter elements wherein the channel is not of uniform cross-section along its full length may also be of use in combating anti-counterfeiting (¶[0029]).
Annotated Fig. 2B shown below, depicts the channel of an octagonal shaped cross-section where an inner diameter D1 (reads over a first inner diameter) has a length larger than the length of an inner diameter D2 (reads over a second inner diameter). This reads over the first inner diameter is greater than the second inner diameter.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to practice the invention of modified Liu to have the support element (modified Liu’s hollow tubular member) comprising a non-uniform channel with varying inner diameters as taught by Melia (annotated Fig.2B) which may be of particular use in combatting anti-counterfeiting.
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Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Liu (CA3063952, cited on IDS dated 6/12/2022) in view of Kadiric (US 2018/0160726).
Regarding claim 20, Liu discloses a smokeless cigarette having a decreased vapor temperature wherein the smokeless cigarette can better fit with a peripheral heater (abstract); in particular to a low temperature cigarette having a decreased vapor temperature (¶[0001]). For a low temperature cigarette, the tobacco is heated by an outer heating element and tobacco smoke is generated by heating rather than by burning (¶[0002]); the heat resistant hollow section can be a better fit for a peripheral heater and avoid the collapse of the cigarette holder (reads over for use as part of a non-combustible aerosol-provision system) (¶[0019]). The low temperature cigarette (reads over an article) comprises a tobacco section (2). Tobacco is an aerosol-generating material (instant specification pg 4, ln 9-11); (reads over an aerosol generating material); a heat resistant hollow tube section housing (3) (i.e. a first hollow tubular body) sequentially connected (see annotated Fig. 4 above) (reads over disposed downstream of the tobacco section) (Fig. 4 ¶[0042]). The tobacco section (2) contains tobacco shreds, tobacco slices, an atomizing agent, a tobacco extract, tobacco flavors and essences, where the atomizing agent consists of glycerol and ethylene glycol (reads over at least one aerosol forming material) (¶[0033]).
Liu discloses in Embodiment 1 the heat resistant hollow section (3) may be made of a high temperature-resistant material, for example, a high temperature-resistant fibrous material, ceramic material, non-woven fabric or paper, where the fibrous material may be various fibrous materials that can resist a certain high temperature, such as a natural fiber, artificial fiber, etc. (¶[0028]). Artificial fiber reads over filamentary tow (e.g. cellulose acetate, see Specification page 8, line 16). This reads over the first hollow tubular body is formed from paper or filamentary tow limitations of the claim.
Liu discloses in Embodiment 2 a perforation treatment is performed at a certain position on the heat-resistant hollow section housing (3), thereby forming a vent hole (5) (reads over at least one ventilation area) in communication with the hollow layer for heat-resistant hollow section (4). When such a tobacco rod is consumed by peripheral heating, the hot air flow in the heated tobacco section (2) flows into the hollow layer for heat-resistant hollow section (4) along the tobacco rod direction and is mixed with the cold air in the hollow layer for heat-resistant section (4), the outer cold air (reads over external air) entering from the vent hole (5) is mixed together with the hot air flow in the tobacco section (2) (¶[0032]). This reads over the at least one ventilation area is arranged to provide external air into the hollow tubular body.
Liu fails to explicitly disclose the first hollow tubular body comprising a wall thickness greater than 0.325 mm.
Kadiric, directed to smoking articles, teaches a smoking article (10) having a tobacco rod (11);
a hollow tubular element (13) (reads over a first tubular body) located downstream of tobacco rod 11 wherein hollow tubular element 13 comprises an internal cylindrical cavity (14) defined by the inner surface of the hollow tubular element (13) therefore, as shown in Fig. 1, hollow tubular element (13) has a wall (Fig. 1 ¶[0012]). The hollow tubular element is formed from paper and has a wall thickness of between 100 and 700 microns (Fig. 1, ¶[0012], ¶[0036-0037], ¶[0060]). The range for the wall thickness disclosed by the prior art encompasses the claimed range is considered prima facie obvious.
Absent a showing of unexpected results, it would have been obvious to one of ordinary skill in the art to select any point within the range taught by the prior art. One of ordinary skill in the art would reasonably expect any value, especially one near the midpoint, within the taught range to be suitable given that the prior art specifically teaches the range to be suitable.
Claim 20 recites the limitation “for use as or as a part of a non-combustible aerosol provision system” in its preamble. The Courts have held that a statement of intended use in the preamble of an apparatus claim fails to distinguish over a prior art apparatus. See In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962).
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 extension fee 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 date of this final action.
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/RONNIE KIRBY JORDAN/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747