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 Amendment
The amendments entered on 5/19/2026 have been accepted. Claims 1 is amended. It is noted that claim 1 contains an incorrect claim status of “Previously Presented”, despite the claims filed 5/19/2026 include the new limitation of “…wherein the first hollow tubular body has a wall thickness of at least 325 microns”. Claim 1 should instead have the status of “Currently Amended”, and the claim will be considered as such. Claims 1, 4-8, 12-14, 17-21, 23, 25-27 are pending, and claims 26-27 are withdrawn from consideration.
Claim Objections
Claims 1, 7, 17, 18, 21 objected to because of the following informalities:
In claim 1, the final three uses of “non-combustible” instead appear to be written as “non- combustible”, with a space between the hyphen and combustible. This space should be removed so that it is written the same as how “non-combustible” is written in the first line of the claim.
Claim 7 line 2 should read “…wherein a length of the cavity”, as this length was not previously introduced.
Claim 17 lines 1-2 should read “…wherein a level of ventilation provided by said at least one ventilation area is within a range of 45% to 65% of a volume of aerosol…”, because these aspects were not previously introduced.
Claim 18 line 1 should read “…wherein the mouth end section”, to be clear that this is referring to the same mouth end section as introduced in claim 1.
Claim 21 lines 2-3 should read “…through a length of the inner body is less than a resistance to gaseous flow through a length of the outer body”, as these lengths were not previously introduced.
Appropriate correction is required.
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.
Claims 1, 5-7, 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Iwanaga (WO2020/115897, citing to US2021/0235747, of record) in view of Xia (CN109892707A) or Liu (CA3063952).
Regarding claim 1, Iwanaga teaches an article (rod “14” [0013, Fig. 1]) configured for use with a non-combustible aerosol provision device comprising a heater (rod is used with the smoking system “11” which is non-combustible [0013] and which comprises heater “21” [0013-0014, Fig. 1]), the article comprising:
an aerosol generating material comprising at least one aerosol forming material selected from glycerol, propylene glycol or a mixture thereof (Figure 2, tobacco filler 23 contains aerosol generating base material which could be glycerin, propylene glycol, others, or mixtures thereof, [0032]);
a first hollow tubular body disposed downstream of the aerosol generating material (first segment “31” which may be hollow [0021, Fig. 2]),
the first hollow tubular body comprising filamentary tow (first segment filled with acetyl cellulose acetate fibers (which is filamentary tow), [0021]);
a mouth end section disposed downstream of the first hollow tubular body (second segment “32” [0021, Fig. 2]),
a second hollow tubular body disposed between the aerosol generating material and the first hollow tubular body (paper tube “35” is clearly disposed between the aerosol generating material and the first body “31” [0035, Fig. 2]),
wherein the second hollow tubular body is formed from paper (paper tube “35” obtained by forming thick paper into cylindrical shape [0028, Fig. 2]),
wherein the length of the second hollow tubular body is such that it extends away from the heater of the non-combustible aerosol provision device by at least 3mm when the article is inserted into the non-combustible aerosol provision device (Figures 1-2, heater “21” may be blade inserted to tobacco part “24” [0018], and length of connecting part “27” (same as paper tube “35” length) is 10-30mm, so must “extend away” from heater at least 3mm, [0022], under the broadest reasonable interpretation of the claim. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Additionally under the BRI of the claim, it is not required for the minimum distance to be taken from the deepest extending portion of the heater but rather may be taken from any portion of the heater, such that the tubular body would necessarily extend away at least 3mm from a portion of the heater which is closest to the edge of the article),
wherein the article is configured such that when the article is inserted into the non-combustible aerosol provision device, the minimum distance between the heater and the first hollow tubular body is at least 3mm (Figures 1-2, heater “21” may be blade inserted to tobacco part “24” [0018], and the length of the first segment may be up to 15mm [0022], such that the first portion must “extend away” from the heater by at least 3mm under the broadest reasonable interpretation of the claim [0022]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Additionally, as the second hollow tubular body may extend away from the heater by at least 3mm as detailed above, the first hollow tubular body would clearly be greater than 3mm as this portion is located further outwards compared to the second hollow tubular body [see Figs. 1-2]. Additionally under the BRI of the claim, it is not required for the minimum distance to be taken from the deepest extending portion of the heater but rather may be taken from any portion of the heater, such that the tubular body would necessarily extend away at least 3mm from a portion of the heater which is closest to the edge of the article).
Iwanga does not explicitly define a wall thickness of the first hollow tubular body being at least 325microns. However, it is known in the art to situate bodies with a wall thickness of at least this thickness. Xia, for example, is tied to a non-combustible heating-type smoking article [title, Fig. 1]. The article includes a hollow tubular body “20” which is downstream of the aerosol generating material “10” [Fig. 1]. The tube may be formed from polylactic acid material [pg. 2 of machine translation], which the instant specification recognizes as material which may be considered filamentary tow [see pg. 14 of originally filed specification]. The thickness of the wall of the hollow tube may be from 0.3-1.2mm, which is equivalent to 300-1200microns [pg. 2, 5 of machine translation]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art would have found it obvious to modify the wall thickness of Iwanga to have the wall thickness as suggested by Xia. As Iwanga is silent as to the wall thickness of its hollow tubular body, it would have been obvious to utilize a conventional wall thickness as suggested by Xia so as to obtain a working article for use with aerosol-generating devices. And one would have been additionally motivated so as ensure that the article would not collapse and would have sufficient mechanical strength and that the overall feel for the consumer is good [pgs. 2-5 of machine translation].
In the alternate, Liu discloses a smokeless cigarette with decreased vapor temperatures [abstract], wherein the structure of the article avoids the collapse of the cigarette holder [0019]. The smokeless cigarette (which reads on the article) contains a hollow tube section housing “3” [Fig. 4, 0042]. 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 a natural fiber, artificial fiber, etc. [0011, 0028]. The artificial fibers reads upon filamentary tow of the hollow portion. The wall thickness of the hollow section housing may range from 0.5-1.1mm (equivalent to 500 to 1100microns) [0012]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art would have found it obvious to modify the wall thickness of Iwanga to have the wall thickness as suggested by Liu. As Iwanga is silent as to the wall thickness of its hollow tubular body, it would have been obvious to utilize a conventional wall thickness as suggested by Liu so as to obtain a working article for use with aerosol-generating devices. And one would have been additionally motivated so as to prevent the heat-caused collapse as the structure of the heat-resistant section helps to avoid said heat-caused collapse [0003-0004, 0019].
Regarding claim 5, modified Iwanaga suggests an article wherein the length of the aerosol generating material is such that it extends away from the heater by at least 3mm when the article is inserted into the non-combustible aerosol provision device (Figure 1, if the rod 14 is barely inserted into the insertion part 13, the length of the tobacco part 24 being 20-70 mm ([0029]), the tobacco part would “extend away” from the heater at least 3mm, [0014]. Additionally, extending away from the heater, under the broadest reasonable interpretation, may mean extending away from an innermost portion of the heater which is the end of the heater, such that it would naturally extend well more than 3mm given the length of the tobacco part. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Regarding claim 6, modified Iwanaga suggests an article further comprising a wrapper at least partially surrounding the aerosol generating material and the first hollow tubular body (Figure 2, lining paper 36 surrounds some of tobacco part 24 and first segment 31, [0028]).
Regarding claim 7, modified Iwanaga suggests an article wherein the wrapper defines a cavity between the aerosol generating material and the first hollow tubular body (Figure 2, lining paper 36 defines at least part containing paper tube 35, which is a cavity between tobacco part 24 and first segment 31, [0028]),
Wherein the length of the cavity is such that it extends away from the heater of the non-combustible aerosol provision device by at least 3mm when the article is inserted into the non-combustible aerosol provision device (Figures 1-2, heater 21 may be blade inserted to tobacco part 24 [0018], and length of connecting part 27 (same as cavity length) is 10-30mm, so must “extend away” from heater at least 3mm, [0022]).
Regarding claim 12, modified Iwanaga suggests an article further comprising at least one ventilation area arranged to allow external air to flow into the article (Figure 2, air vent part 28 allows outside air to be taken into mainstream smoke, [0020]).
Regarding claim 13, modified Iwanaga suggests an article wherein said at least one ventilation area is arranged to provide external air into the aerosol generating material (air vent part takes in external air to mix with aerosol emitted from tobacco filler, [0065]).
Regarding claim 14, modified Iwanaga teaches an article wherein said at least one ventilation area is arranged to provide external air into a cavity of the first hollow tubular body (Figure 2, air is taken into connecting part 27 and flows to first segment 31 (“first hollow tubular body) (in addition or alternatively, the air vent part 28 may be in the filter part 26 which includes first segment 31), [0020]-[0021]).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Iwanaga (WO2020/115897, citing to US2021/0235747, of record) in view of Xia (CN109892707A) or Liu (CA3063952), as applied to claim 1 above, and further in view of Shinozaki (US2014/0366901, of record).
Regarding claim 4, Iwanaga suggests an article according to claim 1, as set forth above. Iwanaga fails to suggest wherein the second hollow tubular body has a wall thickness of at least 300 microns.
Shinozaki teaches a similar flavor inhaler article which can be used like a cigarette ([0003]) wherein the second hollow tubular body has a wall thickness of at least 300 microns (paper tube formed into a cylindrical hollow body like Iwanaga with a thickness of 150 to 500 microns, [0010]). Shinozaki also teaches that this paper tube provides the ability to reduce the amount of adhesive used as well as improve the flexibility of the tube, and can also reduce manufacturing cost and the influence for a flavor from the adhesive [0019]-[0020].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Iwanaga to incorporate the teachings of Shinozaki to make the second hollow tubular body with a thickness of 150-500 microns (which overlaps with the claimed range) because doing so provides the ability to reduce the amount of adhesive used as well as improve the flexibility of the tube, and can also reduce manufacturing cost and the influence for a flavor from the adhesive, as recognized by Shinozaki [0019]-[0020].
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Iwanaga (WO2020/115897, citing to US2021/0235747, of record) in view of Xia (CN109892707A) or Liu (CA3063952), as applied to claim 6 above, and further in view of Hooper (US2011/0155156A1, of record).
Regarding claim 8, modified Iwanaga suggests an article according to claim 6, as set forth above. Iwanaga fails to suggest wherein the wrapper has a citrate content of 1% by weight or less.
Hooper teaches a similar wrapper for smoking material rods wherein the wrapper has a citrate content of 1% by weight or less (citrate (as a burn additive) present at least 0.5% and up to 1%, but may be omitted altogether in a two-ply wrapper, [0082]). Hooper also teaches that additives such as citrate can control sparking issues ([0044]) and that if a wrapper is two-ply (or more, like Iwanaga’s wrapper is), the citrate may be avoided all together (meaning 0%, which is less than the claimed 1%), [0082].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Iwanaga to incorporate the teachings of Hooper to have the wrapper include a citrate content of between 0-1% because doing so can control sparking issues (Hooper, [0044]), or if using a multiple-ply wrapper, citrate can be omitted altogether, as recognized by Hooper [0082].
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Iwanaga (WO2020/115897, citing to US2021/0235747, of record) in view of Xia (CN109892707A) or Liu (CA3063952), as applied to claim 12 above, and further in view of Li (US2007/0235050A1, of record).
Regarding claim 17, Iwanaga suggests an article according to claim 12, as set forth above. Iwanaga fails to suggest wherein the level of ventilation provided by said at least one ventilation area is within the range of 45% to 65% of the volume of aerosol generated by said non-combustible aerosol provision device passing through the article, or between 40% and 60% of the volume of aerosol generated by said non-combustible aerosol provision device passing through the article.
Li teaches a similar smoking article comprising at least one ventilation area arranged to allow external air to flow into the article (Figure 1, ventilating zone 140 allows drawn air to enter article, [0035]) wherein the level of ventilation provided by said at least one ventilation area is within the range of 45% to 65% of the volume of aerosol generated by said non-combustible aerosol provision device passing through the article, or between 40% and 60% of the volume of aerosol generated by said non-combustible aerosol provision device passing through the article (Li, Figure 1, ventilation zone 140 help achieve a ventilation level of at least 25% ([0037]), which overlaps with the claimed ranges of 45-65% or 40-60%). Li also teaches that ventilation has a desirable attribute that reduces the particulate phase and the gas phase constituencies of the mainstream smoke, and also that too much ventilation does have the drawback of low resistance to draw [0003].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Iwanaga to incorporate the teachings of Li to provide a ventilating zone with a ventilation level of at least 25% because doing so would give the desirable attribute that reduces the particulate phase and the gas phase constituencies of the mainstream smoke, and also that too much ventilation does have the drawback of low resistance to draw, as recognized by Li [0003].
Claims 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Iwanaga (WO2020/115897, citing to US2021/0235747, of record) in view of Xia (CN109892707A) or Liu (CA3063952), as applied to claim 1 above, and further in view of Lecoultre (US7243659).
Regarding claims 18-20, Iwanaga suggests an article according to claim 1, as set forth above. Iwanaga fails to suggest wherein the mouth end section comprises a third tubular body, the third tubular body defines the mouth end of the article, and wherein the third tubular body comprises a length of greater than about 10mm or greater than about 12mm.
Lecoultre teaches a similar smokable article wherein the mouth end section comprises a third tubular body defining the mouth end section of the article (Figure 1, cavity 26 is at the mouth end, col. 6 lines 42-45) and wherein the third tubular body comprises a length of greater than about 10mm or greater than about 12mm (length of cavity is 10mm or less (col. 2, line 44), which overlaps the claimed range of about 10mm or greater). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Lecoultre also teaches that the cavity and the air-impermeable cavity wall provides the necessary ventilation without a large degree of variation (col. 6 lines 45-50).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Iwanaga to incorporate the teachings of Lecoultre to provide a third tubular body at the mouth end with a length 10 mm or less because doing so would provide the necessary ventilation without a large degree of variation, as recognized by Lecoultre (col. 6 lines 45-50).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Iwanaga (WO2020/115897, citing to US2021/0235747, of record) in view of Xia (CN109892707A) or Liu (CA3063952), as applied to claim 1 above, and further in view of Blangy (US2015/0144149, of record).
Regarding claim 21, Iwanaga suggests an article according to claim 1, as set forth above. Iwanaga fails to suggest wherein the mouth end section comprises an inner body and an outer body, wherein a resistance to gaseous flow through the length of the inner body is less than a resistance to gaseous flow through the length of the outer body.
Blangy teaches a similar smoking article wherein the mouth end section comprises an inner body and an outer body (Figure 1, central core portion 23 and outer periphery layer 24 are at the mouth end), wherein a resistance to gaseous flow through the length of the inner body is less than a resistance to gaseous flow through the length of the outer body (Figure 1, RTD central core portion 23 has a lower RTD (resistance to draw) than outer periphery layer 24, abstract). Blangy also teaches that the construction concentrates mainstream smoke flow through the central core portion of the concentric sorbent segment, increasing the efficiency of the sorbent material which also allows for the use of less sorbent material (and associated cost) to achieve the desired level of smoke constituent capture and also minimize the sorbent material’s effect on the taste of the article [0005].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Iwanaga to incorporate the teachings of Blangy to provide an inner body and outer body at the mouth end section where the RTD of the inner body is lower than the outer body because doing so would concentrate mainstream smoke flow through the central core portion of the concentric sorbent segment, increasing the efficiency of the sorbent material which also allows for the use of less sorbent material (and associated cost) to achieve the desired level of smoke constituent capture and also minimize the sorbent material’s effect on the taste of the article, as recognized by Blangy [0005].
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Iwanaga (WO2020/115897, citing to US2021/0235747, of record) in view of Xia (CN109892707A) or Liu (CA3063952), as applied to claim 1 above, and further in view of Kadiric (US2015/0208720A1, of record).
Regarding claim 23, Iwanaga suggests an article according to claim 1, as set forth above. Iwanaga fails to suggest wherein the first tubular body comprises a second aerosol generating material.
Kadiric teaches a similar smoking article with mouth end cavities wherein the first tubular body comprises a second aerosol generating material (plurality of filter segments contain flavorants, [0050]). Kadiric also teaches that providing a flavorant in a filter (or filters) can allow for the consumer to manually release the flavorant immediately prior to smoking the article, [0013].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Iwanaga to incorporate the teachings of Kadiric to have provided a flavorant in the mouth end filter because doing so can allow for the consumer to manually release the flavorant immediately prior to smoking the article, as recognized by Kadiric [0013].
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Iwanaga (WO2020/115897, citing to US2021/0235747, of record) in view of Xia (CN109892707A) or Liu (CA3063952), as applied to claim 1 above, and further in view of Reed (US2016/0219930A1, of record).
Regarding claim 25, Iwanaga suggests an article according to claim 1, as set forth above. Iwanaga fails to suggest wherein the mouth end section comprises a body of filamentary tow, wherein said filamentary tow of the body of filamentary tow comprises a weight per mm of length of the body which is between about 10% and about 30% of the range between the minimum and maximum weights of a tow capability curve generated for the filamentary tow.
Reed teaches a similar smoking article containing a filter wherein the mouth end section comprises a body of filamentary tow (Figure 1, core 2 is filtering material made of filamentary tow), wherein said filamentary tow of the body of filamentary tow comprises a weight per mm of length of the body which is between about 10% and about 30% of the range between the minimum and maximum weights of a tow capability curve generated for the filamentary tow (Table 1 and Figure 3 shows exemplified results for tow capability % in the range of -1% to 36%, which overlaps the claimed range). Reed also teaches that using tows with the above capability % allows for the tow to have an acceptable pressure drop even when used in superslim or microslim products [0003].
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Iwanaga to incorporate the teachings of Reed to include a tow with a capability % in the range of -1% to 36% because doing so would allow for the tow to have an acceptable pressure drop even when used in superslim or microslim products, as recognized by Reed [0003]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Response to Arguments
Applicant’s arguments with respect to claim 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Specifically, the new applied references of Xia or Liu suggest the newly added limitation of the first hollow tubular body wall thickness in independent claim 1.
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.
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/T.F.S./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
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