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, 5-6, 8-9, 11-12, 14-15, 17-21, 23, 27, 30, and 32 are pending and are subject to this Office Action. Claim 1 has been amended. Claim 31 has been cancelled. Claim 27 has been withdrawn from consideration.
Response to Arguments
Applicant’s arguments, pages 8-12, filed 16 March 20265, with respect to claims 1-3, 5-6, 8-9, 11-12, 14-15, 17-21, 23, 27, and 30 under 35 USC § 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new grounds of rejection is made in view of previously applied prior art and newly found prior art.
Applicant argues, pages 8-9, that the prior art of Aoun used in the rejection of claim 31 is commonly owned art and therefore subject to an exception.
The Examiner acknowledges this art is commonly owned and thus is covered under the 35 USC § 102(B)(2)(C) exception.
Applicant argues, pages 9-10, that the claims are not limited to a rod configuration and neither one of the cited references associates a particular technical effect or benefit with this configuration.
The Examiner disagrees that a rod shape would not be considered when considering an aerosol generating consumable. The limitations of the instant claims do not specify a shape for the consumable and as such all possible shapes would be given consideration. The Examiner also notes that the shape of a rod for aerosol generating consumables is common in the art and would be considered. It is also noted that the Applicant’s specification and drawings both discuss and depict a rod shape for the consumable. (specification p 36 ln 29-30; p 38 ln 8-10, Figures 1-3) as does the art of both the prior art of Ajithkumar and Deforel.
Applicant argues, pages 8-9, that Deforel describes a higher amount of an active substance in the relevant embodiments.
The Examiner respectfully disagrees. Deforel is used to teach the possibility of using multiple materials to form the aerosol generating consumable. Deforel teaches that optionally, the amount of the clove material or the tobacco material can be the 90 to 95 percent by weight. While the amount in this specific description is higher than the claimed range, when the entirety if the prior art is taken into account the possible range of the active and tobacco material can be much lower for the plug material. In claim 1 Deforel provides the full range that a person having ordinary skill would consider; the particulate plant material comprising between 10 percent and 100 percent by weight clove particles and between 0 percent and 90 percent by weight tobacco particles, based on the dry weight of the particulate plant matter.
Applicant argues, page 11, that it was only through hindsight reasoning that certain features would have been selected from the prior art.
Ajithkumar is used to teach an aerosol generating article having a known composition. Deforel teaches an aerosol generating article with a similar composition to that of Ajithkumar and further teaches that two sections/plugs of material having different active/ flavoring material in each section. Deforel teaches this configuration allows for the flavor to be preserved and comparable to that of a combusted article and provide such an aerosol-generating substrate that can be readily incorporated into an aerosol-generating article and which can be manufactured using existing high-speed methods and apparatus. (p 1-2 ln 34-4) Therefore, a person having ordinary skill would consider modifying the teachings of Ajithkumar, using the teachings of Deforel, to create an aerosol generating article that would use two materials aligned in order to be able to preserve flavors in one of the sections.
The following is a modified rejection based on amendments made to the 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.
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, 12, 14, 23, 30 and 32 are rejected under 35 U.S.C. 103 as being unpatentable over Ajithkumar, et al (WO2019122015A1) and further in view of Deforel (WO2020074535A1) and Gindrat (US20140166032A1).
Regarding claim 1, Ajithkumar teaches an aerosol generating article (consumable) for use with a heated aerosol generating device. (p1 ln 3-6) The aerosol generating article is comprised of an aerosol generating substrate. The aerosol generating substrate is comprised of homogenized tobacco material (p1 ln 21) which can be a cast leaf product. (p1 25-26) The cast leaf product is formed by casting a slurry comprising tobacco particles and a binder (p1 32-35) and may include additional fibres, a binder and an aerosol former. (p2 ln 3-4)
Ajithkumar teaches that the homogenized tobacco material used to form the aerosol generating substrate comprises:
• An aerosol former preferably between about 5% and 30% by weight on a dry weight basis.(p11 ln 4-6)
• A binder material between about 1% and about 5% by weight on a dry weight basis.(p11 ln 22-23) Ajithkumar teaches that the binder is designed to gel when it comes in contact with water (p 11 ln 26) and as such is considered to read on the gelling agent.
• A tobacco material is at least about 70% by weight (p11 ln 7-8)
The composition of the sheet of homogenized tobacco material taught by Ajithkumar overlaps the range of the instant claim, and therefore the instant claim is prima facie obvious. See MPEPE 2144.05.
Ajithkumar teaches the tobacco particles may include additional fibers. The type and size of the particles may include particles of tobacco stem material, stalks or other tobacco plant material, and other cellulose-based fibers such as wood fibers having a low lignin content. These additional fibers may be selected with a view to adjusting the tensile strength of the cast leaf. (p2 ln 7-12) The additional fibers are considered reinforcement fibers and may increase the resilience of a web of homogenised tobacco material. (p12 ln 14-16) Ajithkumar teaches that the homogenized tobacco material can contain 1 weight percent and 15 weight percent of these reinforcement fibers. (p12 ln 10-12)
Ajithkumar is silent as to what the specific tensile strength of the of the sheet of cast leaf material containing the additional fiber particles.
Deforel , directed to the design of aerosol generating substrates, also teaches and aerosol generating substrate that is comprised of a homogenized plant material. (p7 ln 10) The homogenised plant material may comprise one or more binders to help agglomerate the particulate plant material and lipids, fibers, aerosol formers, humectants, plasticisers, flavourants, fillers, aqueous and non-aqueous solvents and combinations thereof. (p8 ln 10-11) Deforel teaches the composition is comprised of :
An aerosol former content of 5% to 30% by weight on a dry weight basis. (p9 ln 25-26)
A binder in the amount from 1% to 10% by weight on a dry weight basis. (p8 ln 21-22)
An active substance (tobacco) (p2 ln 14-29) and/or flavorant (clove) 70-90% (p4 ln 19-21) Deforel teaches that the clove flavor contains other compounds including crategolic acid, gallotannic acid, and oleanolic acid. (p4 ln 21-24)
Deforel further teaches that the sheets formed of the above composition has a maximum tensile strength, normalized to the sheet thickness, of 100 N/m to 800 N/m. (p10 ln 25-27)
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar by adding fibrous materials to achieve a tensile strength as taught by Deforel because both Ajithkumar and Deforel are directed to homogenized tobacco sheets, Deforel teaches this tensile strength makes sheets suitable for operations involving mechanical stresses. (p10 ln 29-31), and this involves the use of known technique of adding reinforcing fibers to a slurry to improve similar aerosol generating products in the same way.
Deforel teaches that the aerosol generating article can comprise two or more plugs of material and that the particulate of the first plug can comprise clove particles and the second particulate plant material may comprise tobacco particles. (p13 ln 34-36) Deforel does note that the respective plugs can be changed relative to one another. (p14 ln 20-21)
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar by using two or more different compositions as taught by Deforel because both Ajithkumar and Deforel are directed to aerosol generating materials, Deforel teaches the plugs can be lined in any suitable arrangement to form a rod. (p14 ln 15-17), and this involves the use of known technique of combining sections of aerosol generating material to form a rod to improve similar products in the same way.
Neither Ajithkumar and Deforel fail to teach the area density of the aerosol generating substrate.
Gindrat, directed to the design of aerosol generating rods, teaches the aerosol generating material comprising aerosol formers, and tobacco material, flavorings, and binders, specifically noting the use of alginate, agar, or pectin. [0072-0073] The prior art notes the sheets of homogenised tobacco material may have a grammage, aka area density, of 100 g/m2 and about 300 g/m2. [0096]
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar and Deforel with the teachings of Gindrat by using an area density/grammage as taught by Gindrat because Ajithkumar, Deforel, Gindrat are directed to aerosol generating materials, Gindrat teaches an aerosol generating material that has the same base composition as that of both Ajithkumar and Deforel. Gindrat teaches that controlling the density and dimensions of the sheet of homogenised tobacco material reduces inconsistencies in weight between rods providing for a lower rejection rate of material. [0029] , and this involves the use of known technique of controlling the density to improve the consistency of similar aerosol generating products in the same way.
Regarding claims 12 and 14, Deforel teaches that the first particulate plant material comprising between at least 50 percent and 100 percent by weight clove particles and the second particulate plant material comprising between at least 50 percent and 100 percent by weight tobacco particles, based on dry weight of the second particulate plant material. (p 13 ln 25-30) Deforel teaches that the first particulate plant material section contains clove and does not contain an active (tobacco). The second particulate plant material section contains tobacco and not the clove plant material; as such the two sections would have different quantities of active substances.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar by using two different aerosol-generating materials in different quantities as taught by Deforel because both Ajithkumar and Deforel are directed to homogenized tobacco sheets, Deforel teaches this would provide an aerosol-generating substrate that provides an improved clove flavour to the consumer, comparable to the flavour provided in a combustible kretek cigarette (p 1-2 ln 36-1), and this involves the use of known technique to improve similar aerosol generating products in the same way.
Regarding claim 23, Ajithkumar teaches the aerosol formers can contain polycarboxylic acids. (p10 ln 29 and 33) A person having ordinary skill would recognize that polycarboxylic acids are organic acids which also include benzoic acid.
Regarding claim 30, Ajithkumar teaches that the homogenized tobacco material may contain between 1 weight percent and 15 weight percent of reinforcement fibers on a dry weight basis. (p12 ln 10-12)
Regarding claim 32, Ajithkumar teaches the list of possible binders that can be used in the composition that includes known setting agents such as alginates and starches. (p 11-12 ln 32-37) Ajithkumar teaches that the binder would be present in the quantity of 1 percent to 3 percent in the slurry. (p 12 ln 35-36) Deforel also teaches a list of binders that can be used to form the gel composition. These binders includes starches and sodium-alginate. Deforel teaches that the binder material would be present in the composition from about 1 percent to about 10 percent. (p 8 ln 14-24) The claimed range overlaps the range disclosed by the prior art and is therefore considered prima facie obvious. See MPEP 2144.05 A person having ordinary skill in the art would recognize that alginates and/or starches can be used as setting agents; as such, the use of these binders in the composition would read on the limitation of a setting agent in the homogenized tobacco material.
Claims 2, 3, 5, and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Ajithkumar, et al (WO2019122015A1), Deforel (WO2020074535A1), and Gindrat (US20140166032A1) as applied to claim 1 above, and further in view of Metrangelo, et al (WO2013178767, from IDS dated 5/26/2022).
Regarding claim 2, Deforel teaches that the aerosol generating substrate can contain two sections and that the sections can contain tobacco and/or clove (flavoring). However, Deforel only teaches the clove as flavorant and is silent with respect to the use of other flavorants.
Metrangelo, directed to the design of aerosol generating articles, teach an aerosol generating article made of multiple aerosol generating components where the first aerosol generating material is made of reconstituted tobacco (p2 ln 16-18) and the second sheet of material contains a non-tobacco flavoring (p2 ln 18) and goes on to teach that the second sheet may be formed from a gel that incorporates the flavorant. (p2 ln 28-29)
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar and Deforel by using a tobacco containing aerosol generating material as the first material and a flavor aerosol generating material as the second material as taught by Metrangelo because Ajithkumar and Deforel and Metrangelo are directed to aerosol generating materials, Metrangelo teaches having the flavor and tobacco portions makes it possible to produce short runs of certain flavored products in an economical way (p4 ln 5-6), and this involves combining prior art elements according to known methods to yield predictable results.
Regarding claim 3, Deforel teaches an aerosol generating substrate comprised of two sections where one section that has the flavorant (clove) contains the acid and is silent with respect to the use of flavorants that would not contain an acid.
As discussed above, Metrangelo teaches a sheet of tobacco (first aerosol generating material) and a separate sheet of non-tobacco flavourant (second aerosol generating material). The first sheet of Metrangelo contains only the tobacco and as such the first sheet is free of flavourant.
Regarding claim 5, As discussed above, Deforel teaches a first aerosol generating material that can contain tobacco and the second sheet can contain tobacco. Deforel does not teach that the second sheet contains an acid that is not a portion of the flavorant.
Metrangelo teaches that the first aerosol generating sheet contains only tobacco, where tobacco is considered the active substance. Metrangelo teach that the second sheet can comprise an aerosol former to carry the flavor component into the aerosol. Ajithkumar discloses the aerosol formers known in the art that are suitable for use in aerosol generating sheets include carboxylic acids (p10 ln 32-33) as such it would be obvious to select an acid aerosol generating material for the second aerosol generating material.
Regarding claim 6, a Modified Metrangelo discloses the amorphous solid of the first aerosol-generating material is free from the acid and the flavorant and/or wherein the amorphous solid of second aerosol-generating material is free from the flavorant and the active substance.
Ajithkumar teaches the use of various suitable aerosol formers. (p10 ln 29-37) Deforel and Metrangelo teach that the first sheet/section contains only a tobacco material and an aerosol former. Metrangelo teaches that the preferred aerosol former is glycerine (p9 ln 26) as such a person having ordinary skill in the art would recognize that the first aerosol sheet could be free of both the acid and the flavorant.
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Ajithkumar, et al (WO2019122015A1), Deforel (WO2020074535A1), and Gindrat (US20140166032A1), as applied to claim 1 above, and further in view of Reevell (US20190208820A1).
Regarding claims 8 and 9, the prior art of Ajithkumar, as modified by Deforel, fails to teach the amorphous solid of the first aerosol-generating material comprises the flavorant and wherein the amorphous solid of the second aerosol-generating material comprises the acid. and the amorphous solid of the first aerosol-generating material is free from the active substance and the acid and/or wherein the amorphous solid of the second aerosol-generating material is free from flavorant and the active substance.
Reevell, directed to the design of volatile substrates for use with electrical aerosol generating systems, teaches that the first volatile substrate may be a first aerosol-forming substrate and the second volatile substrate may be a second aerosol-forming substrate and that these two substrates can be comprised of different compositions which are interchangeable so that the user may choose different combinations. [0013] Revell teaches that the first volatile substrate may be a first component of an aerosol-forming substrate and the second volatile substrate may be a second component of the aerosol-forming substrate and that the substrates that are comprised of an aerosol former [0063] By combining the teachings of Deforel and Reevell a person of ordinary skill would recognize that one substrate could contain the acid and a second substrate could contain the flavor and that the order of these components could be rearranged.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar and Deforel by using a tobacco containing aerosol generating material as the first material and a flavor aerosol generating material as the second material as taught by Metrangelo because Ajithkumar and Deforel and Metrangelo are directed to aerosol generating materials, Metrangelo teaches having the flavor and tobacco portions makes it possible to produce short runs of certain flavoured products in an economical way (p4 ln 5-6), and this involves combining prior art elements according to known methods to yield predictable results.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Ajithkumar, et al (WO2019122015A1), Deforel (WO2020074535A1), and Gindrat (US20140166032A1), as applied to claim 1 above, and further in view of Mishra, et al (US20160120225A1).
Regarding claim 11, as discussed in claim 1 Ajithkumar teaches an aerosol generating substrate comprising An aerosol former preferably between about 5% and 30% by weight on a dry weight basis (p11 ln 4-6), a binder material between about 1% and about 5% by weight on a dry weight basis.(p11 ln 22-23) Ajithkumar teaches that the binder is designed to gel when it comes in contact with water (p 11 ln 26) and as such is considered to read on the gelling agent, and a tobacco material is at least about 70% by weight. (p11 ln 7-8)
The prior art is silent with respect to an aerosol generating material that is free from an active substance, a flavorant, and an acid.
Mishra, directed to gel formulations for vaping devices, a gel formulation for a vaping device that includes a vapor former (aerosol former), a biopolymer (gelling agent), and water. (Abstract) The prior art teaches that the gel formulation is comprised of a vapor former in the amount of about 40% to about 90% ([0009], [0080]) and the biopolymer in the amount of about 0.01% to 2%. ([0007], [0083]) Mishra teaches that the vapor former (aerosol former) can include propylene glycol, glycerin, 1,3-propanediol, and combinations thereof [0016] and that the biopolymer (gelling agent) can be one or more of agar, kappa carrageenan, gelatin, sodium alginate, gellan gum, pectin, and combinations thereof. [0021]
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar and Deforel by using the formulation for aerosol generating material lacking the active, flavor, and acid as taught by Mishra because Ajithkumar, Deforel, and Mishra are directed to aerosol generating materials, Mishra teaches this composition is used to form a vapor when heated ([0007],[0057]), and this involves combining prior art elements according to known methods to yield predictable results
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Ajithkumar, et al (WO2019122015A1), Deforel (WO2020074535A1), and Gindrat (US20140166032A1)., as applied to claim 1 above, and further in view of Metrangelo, et al (US20150150302A1, herein after referred to as Metrangelo '302) and/or Capelli, et al (WO2019193210).
Regarding claim 15, a modified Ajithkumar fails to teach that the amorphous solid of the first aerosol-generating material comprises a different flavorant from the flavorant of the amorphous solid of the second aerosol-generating material and/or wherein the amorphous solid of the first aerosol-generating material comprises a different active substance from the active substance of the amorphous solid of the second aerosol- generating material.
In claim 1, Ajithkumar, as modified by Deforel, teaches that the aerosol generating article can be two different aerosol generating sections containing two different components where one section is tobacco and a second section contains clove (flavorant). However, neither discloses the first aerosol-generating material comprises a different flavorant from the flavorant of the amorphous solid of the second aerosol-generating material and/or wherein the amorphous solid of the first aerosol-generating material comprises a different active substance from the active substance of the amorphous solid of the second aerosol-generating material.
Metrangelo ‘302 teaches the use of two chemically different aerosol generating sheets containing types of tobacco (active) that have different flavor profiles. Metrangelo teaches that the use of a tobacco with one flavor profile on a first sheet and a second tobacco material having a second flavor profile on a second sheet. ([0030]-[0032])
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar and Deforel by using two separate sheets for two different flavors of tobacco as taught by Metrangelo ‘302 because Ajithkumar, Deforel, and Metrangelo ‘302 are directed to aerosol generating materials, Metrangelo ‘302 teaches this allows the different constituents/ tobaccos to be processed in different ways [0009] and this involves using a technique of separating materials for ease of processing.
Additionally or alternatively Capelli, directed to the design of aerosol generating gel material, teaches that the gel composition (amorphous solid) can contain an aerosol generating agent (glycerol), viscosifying agent, gelling agents, alkaloid compound (nicotine), a cannabinoid compound, or both alkaloid and cannabinoid compounds. (Abstract) Capelli teaches that a cannabinoid is another possible active that can be used in the aerosol generating material having a similar formulation to those of Metrangelo ‘767, Deforel, and Metrangelo ‘302
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar and Deforel by using two different active materials as taught by Capelli because Ajithkumar, Deforel, and Capelli are directed to aerosol generating materials, Capelli teaches this provides the user with either a nicotine, a cannabinoid, or both that are physically stable (p1 ln 18-20) and allows the user to select the desired active or actives.
Claims 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Ajithkumar, et al (WO2019122015A1), Deforel (WO2020074535A1), and Gindrat (US20140166032A1), as applied to claim 1 above, and further in view of Garcia, et al (WO2019129694A1).
Regarding claims 17 and 18, Ajithkumar teaches that the sheet can have reinforcement fibers but is silent with respect to the sheet having a support.
Garcia, directed to the design of aerosol generating articles, teaches an aerosol generating article that has at least two aerosol generating sheets comprising aerosol generating material and a inductive susceptor (p2 ln 5-7) where the aerosol generating sheet are adhered to the susceptor (p 2 ln 30). Garcia teaches the susceptor provides structural integrity to the aerosol generating article (p 3 ln 3) which is considered to read on the support limitation.
Garcia further teaches that the susceptor can be a sheet (p3 ln 17; Fig 1 and 2) or a plurality of strips (p 4 ln 15; Fig 4)
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar and Deforel by attaching the aerosol generating layers to a susceptor as taught by Garcia because Ajithkumar, Deforel, and Garcia are directed to aerosol generating articles, Garcia teaches this provides structural integrity to the aerosol generating article, and this involves the use of known technique to improve similar products in the same way.
Claims 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Ajithkumar, et al (WO2019122015A1), Deforel (WO2020074535A1), and Gindrat (US20140166032A1), as applied to claim 1 above, and further in view of Metrangelo, et al (US20150150302A1, herein after referred to as Metrangelo '302).
Regarding claims 19 and 20, as discussed in claim 1 Ajithkumar teaches an aerosol generating substrate comprising An aerosol former preferably between about 5% and 30% by weight on a dry weight basis (p11 ln 4-6), a binder material between about 1% and about 5% by weight on a dry weight basis.(p11 ln 22-23) Ajithkumar teaches that the binder is designed to gel when it comes in contact with water (p 11 ln 26) and as such is considered to read on the gelling agent, and a tobacco material is at least about 70% by weight. (p11 ln 7-8)
Ajithkumar teaches that the aerosol generating article can contain one or more sheets of homogenized tobacco material (Abstract) and Deforel teaches a substrate with two plugs having different material compositions (p13 ln 34-36).
Metrangelo ‘302 teaches that the aerosol generating rod can be made of multiple sheets ([0001], [0142]), and it would be reasonable to conclude that the sheets would have the same general composition as the first and second sheets.
Metrangelo ‘302 further teaches (19) the third aerosol-generating material has a different composition from a composition of the amorphous solid of the first aerosol-generating material and/or the second aerosol-generating material. and (20) the amorphous solid of the fourth aerosol-generating material has a different composition from a composition of the amorphous solid of at least one of the first, second or third aerosol-generating materials.
Metrangelo ‘302 teaches that two aerosol forming sheets may contain different proportions of any element including the levels of tobacco (active) in the sheets. ([0014]; [0041]; Claim 2) Metrangelo ‘302 teaches that the sheets of material each can have distinct physical and chemical characteristics; as such a person having ordinary skill would understand that additional sheets, including third and fourth sheets, could have different, distinct, chemical and physical composition as compared to the first and second sheets of aerosol generating material. The prior art also notes that the use of two or more sheets of differing materials may be possible [0142] similar to the teachings of Metrangelo ‘767.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar and Deforel by using chemically different compositions for any additional sheets as taught by Metrangelo ‘302 because Ajithkumar, Deforel, and Metrangelo ‘302 are directed to aerosol generating materials, Metrangelo ‘302 teaches the combination of different sheets allows for new blends to be created that could not be produced by a single sheet of material. [0029], and this involves the use of known technique to improve similar devices products in the same way.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Ajithkumar, et al (WO2019122015A1), Deforel (WO2020074535A1), and Gindrat (US20140166032A1), as applied to claim 20 above, and further in view of Metrangelo, et al (WO2013178767, from IDS dated 5/26/2022, herein after referred to as Metrangelo '767) and Metrangelo, et al (US20150150302A1, herein after referred to as Metrangelo '302) as applied to claim 20 above, and further in view of Mishra, et al (US20160120225A1).
Regarding claim 21, The prior art fails to disclose a consumable where the amorphous solid of the first aerosol-generating material comprises the active substance and is free from the flavorant and the acid; the amorphous solid of the second aerosol-generating material comprises the flavorant and is free from the active substance and the acid; the amorphous solid of the third aerosol-generating material comprises the acid and is free from the flavorant and the active substance; and the amorphous solid of the fourth aerosol-generating material is free from the active substance, the flavorant and the acid.
Ajithkumar, modified by Deforel, teaches an aerosol generating consumable that has multiple components that can have different compositions. However, Deforel only explicitly teaches two components.
As discussed in claim 20, Metrangelo ‘302 teaches an aerosol generating rod can be made of multiple sheets of aerosol generating material and that these sheets can have distinct compositions.
As discussed in claims 2 and 3, a Metrangelo ‘767 is used to modify the teachings of claim 1 and teaches that the aerosol generating material can be made up of two or more layers of aerosol generating material. The first layer is a layer of reconstituted tobacco material, the second material is a layer of an aerosol generating material containing a flavorant.
In claim 1 a modified Ajithkumar teaches an aerosol generating component that can contain an acid in the form of an aerosol generating material.
As discussed in claim 11, Mishra teaches an aerosol generating gel that only contains an aerosol forming (vapor forming) material, a binder/gelling agent, and water and does not include an active, acid or flavorant.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ajithkumar and Deforel with the teachings of Metrangelo ‘302 and Metrangelo ‘767 by adding the layers of aerosol generating material as taught by Metrangelo ‘302 and Metrangelo ‘767 because Ajithkumar, Deforel, Metrangelo ‘302, and Metrangelo ‘767 are directed to aerosol generating materials, Metrangelo ‘302 teaches the combination of different sheets allows for new blends to be created that could not be produced by a single sheet of material. [0029], and this involves the use of known technique to improve similar devices products in the same way.
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 VIRGINIA R BIEGER whose telephone number is (703)756-1014. The examiner can normally be reached M-Th: 7:30-4:30.
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, Phillip 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/V.R.B./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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