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 1-5, 11-12, 14-16, 22, 24-26, 32, and 34-36 are pending and are subject to this Office Action. Claim 1 is amended. Claims 6-10, 13, 17-21, 23, 27-31, and 33 are cancelled. Claims 35-36 are new.
Response to Amendments
The amendments to the claims filed on February 17, 2026 are acknowledged.
Response to Arguments
Applicant's arguments, see pgs 8-13, filed February 17, 2026, with respect to the rejection(s) of claims 1-5, 8-12, 14-16, 19-22, 24-26, 29-30, 32, and 34 under 35 U.S.C. 103 have been fully considered but they are not persuasive.
On pg. 9-10, Applicant argues that Batista does not disclose or suggest the limitation: “wherein the tobacco shreds subjected to smoke enhancement consist of tobacco shreds and a first smoke enhancing agent” because: 1) the shreds of tobacco material are formed from shredding a sheet of homogenised tobacco material (Batista, page 13, ln 12-24); and 2) the sheets of homogenised tobacco material also include one or more binders and other additives (Batista, pg 12, ln 17-23). Examiner does not find the argument persuasive because Batista states that the sheet of homogenised tobacco material is formed from a slurry comprising an aerosol former and particulate tobacco (Batista, pg 13, ln 9-35). The slurry may comprise binders such as guar gum, non-tobacco fibres such as cellulose fibres, and other additives (Batista, pg 12, ln 17 – pg 13, ln 11); however, Batista states that all binders, non-tobacco fibres, and other additives to the slurry/sheet are optional (Batista, pg 12, ln 17-23). Therefore, there must be embodiments of the sheet of homogenized tobacco material taught by Batista wherein the sheet consists of the aerosol former (first smoke enhancing agent) and particulate tobacco. Additionally, if the sheet consisting of tobacco and the aerosol former is shredded, the resulting tobacco shreds consist of tobacco shreds and the first smoke enhancing agent.
On pg. 9, Applicant argues that the specification supports the critically of the claimed mass percentage range (12.5% and 17.5%) of the first smoke enhancing agent in the tobacco shreds (see instant specification, pg, 5, ln 13-18; When the mass percentage of the smoke enhancing agent reaches 25%, the smoke enhancing effect is close to the limit, even if the mass percentage of the smoke enhancing agent is further increased, it is difficult to see further smoke enhancing effects). On pg 11, Applicant further argues that Embodiments 8 and 10 and Figs. 1-2 of the specification further support the criticality of the claimed range. Examiner does not find the arguments persuasive because the criticality of a claimed range must be sufficiently supported by experimental data. Because the claimed mass percentage range of 12.5% to 17.5% does not include the value of 25%, the citation in the specification (pg, 5, ln 13-18) cannot support the criticality of the claimed range. Further, Embodiment 8 describes a test of the TPM content of 5 kinds of tobacco shreds comprising 5%, 10%, 15%, 20%, and 25% butantetrol as a smoke enhancing agent (pg. 14, ln 21 – pg 15, ln 24, Fig. 1). Embodiment 10 describes a test of the TPM content of 5 kinds of tobacco shreds comprising 5%, 10%, 15%, 20%, and 25% pentitol as a smoke enhancing agent (pg. 16, ln 10 – pg 17, ln 17, Fig. 2). While the curves shown in Figs. 1 and 2 span over the claimed mass percentage range of 12.5% and 17.5%, the experimental data lacks data points that support the claimed end points of 12.5% and 17.5%. Therefore, the data shown in Embodiments 8 and 10 and Figs. 1-2 does not support the criticality of the claimed range. Further, none of the Embodiments, Tables, or Figures in the specification include data points at or near 12.5% and 17.5% that establish the criticality of the end points. As such, the claimed range has not been persuasively shown to have unexpected results and be critical, and the arguments are unpersuasive.
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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Batista (WO 2019/197417 A1) as evidenced by Godleski (US 5,189,199 A).
Regarding Claim 1, Batista, directed to aerosol generating articles (pg 1, ln 3-5), teaches a cigarette subjected to smoke enhancement (pg 15, ln 34-37, Fig. 1; Aerosol generating article 10 comprises an aerosol-generating substrate 20, a mouthpiece 50, wherein the aerosol-generating substrate 20 is circumscribed by a wrapper 60; and pg 10, ln 28-29, pg 11, ln 36 - pg 12, ln 7, Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol; and pg 10, ln 25-27, The wrapper may be a cigarette paper. It is reasonably understood that aerosol-generating article 10 is a cigarette. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23. Butantetrol is a smoke enhancement agent; see instant specification, pg 7, ln 9-24), comprising
cigarette paper (pg 10, ln 25-27, pg 15, ln 34-37, Fig. 1; Aerosol generating article 10 comprises an aerosol-generating substrate 20 circumscribed by a wrapper 60. The wrapper may be a cigarette paper),
a filter tip (pg 15, ln 34-37, pg 17, ln 18-19, Fig. 1; Aerosol generating article 10 comprises a mouthpiece 50. Mouthpiece 50 is located at the tip of aerosol-generating article 10, and may comprise a cellulose acetate tow filter), and
an aerosol generating substrate (pg 15, ln 34-37, Fig. 1; Aerosol generating article 10 comprises an aerosol-generating substrate 20),
wherein the aerosol generating substrate comprises tobacco shreds subjected to smoke enhancement (pg 10, ln 28-29, pg 11, ln 36 - pg 12, ln 7, pg 13, ln 12-17, pg 15, ln 34-37, Fig. 1; Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol. Alternatively, the homogenized sheet of tobacco may be shredded. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23. Butantetrol is a smoke enhancement agent; see instant specification, pg 7, ln 9-24),
wherein the tobacco shreds subjected to smoke enhancement consist of tobacco shreds and a first smoke enhancing agent, wherein the first smoke enhancing agent is at least one of butantetrol, pentitol or hexanehexol (pg 11, ln 36 - pg 12, ln 7, pg 13, ln 9-35, The homogenized tobacco sheet is formed by casting a slurry of particulate tobacco. The homogenized tobacco sheet and slurry may further comprise erythritol as an aerosol former. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23. Erythritol (butantetraol) is a smoke enhancing agent (see instant specification, pg 18, ln 9-12). pg 12, ln 17 – pg 13, ln 11, The slurry may comprise binders such as guar gum, non-tobacco fibres such as cellulose fibres, and other additives; however, Batista states that all binders, non-tobacco fibres, and other additives to the slurry/sheet are optional. Therefore, there must be embodiments of the sheet of homogenized tobacco material taught by Batista wherein the sheet consists of the aerosol former (first smoke enhancing agent) and particulate tobacco) and
presents at a mass percentage of between 12.5% and 17.5% in the tobacco sheet subjected to smoke enhancement (pg 12, ln 3-16, The sheet of homogenized tobacco material has an aerosol former (smoke enhancing agent) content of 5% to 30% on a dry weight basis).
The range for the first smoke enhancing agent mass percentage disclosed by the prior art overlaps the claimed range, and therefore the claimed range is considered prima facie obvious.
Claims 2-5, 8-12, 14-16, 22, 24-26, 32, and 34-36 are rejected under 35 U.S.C. 103 as being unpatentable over Batista (WO 2019/197417 A1) as applied to Claim 1, and further in view of Iadanza (US 2021/0244079 A1), as evidenced by Godleski (US 5,189,199 A) and Taylor (US 2007/0259090 A1).
Regarding Claim 2, Batista further teaches the cigarette wherein the aerosol generating substrate may comprise either the tobacco shreds subjected to smoke enhancement or a tobacco sheet subject to smoke enhancement, the tobacco sheet comprising a second smoke enhancing agent, and wherein raw materials for manufacturing the tobacco sheet subjected to smoke enhancement comprise tobacco sheet slurry and the first second smoke enhancing agent (pg 10, ln 28-29, pg 11, ln 36 - pg 12, ln 7, pg 13, ln 9-35, pg 15, ln 34-37, Fig. 1; Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol. Alternatively, the homogenized sheet of tobacco may be shredded. The homogenized tobacco sheet is formed by casting a slurry of particulate tobacco. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23. Butantetrol is a smoke enhancement agent; see instant specification, pg 7, ln 9-24. Butantetrol is both the first and second smoke enhancement agent),
but does not teach the cigarette wherein the aerosol generating substrate further comprises the tobacco shreds subjected to smoke enhancement and the tobacco sheet subject to smoke enhancement.
Iadanza, directed to aerosol generating articles ([0001]), teaches a cigarette ([0153]-[0155], [0159], Fig. 2; Aerosol-generating article 10 comprises an aerosol forming substrate 20, a wrapper 3, and a mouthpiece 50, wherein the wrapper 3 may comprise a cigarette paper. Aerosol generating article 10 is a cigarette), comprising
cigarette paper ([0153]-[0155], [0159], Fig. 2; Aerosol-generating article 10 comprises a wrapper 3, wherein the wrapper 3 may comprise a cigarette paper),
a filter tip ([0153]-[0155], [0158], Fig. 2; Aerosol-generating article 10 comprises a mouthpiece 50 at its tip, wherein the mouthpiece 50 is a conventional cellulose acetate tow filter), and
an aerosol generating substrate ([0153]-[0155], Fig. 2; Aerosol-generating article 10 comprises an aerosol forming substrate 20),
wherein the aerosol generating substrate comprises both a tobacco sheet and tobacco shreds ([0090], [0153]-[0155], [0159], Fig. 2; Aerosol-generating article 10 comprises an aerosol forming substrate 20, wherein the aerosol forming substrate 20 may comprise both a tobacco sheet and tobacco shreds).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the cigarette taught by Batista comprising both the tobacco sheet subjected to smoke enhancement and the tobacco shreds subjected to smoke enhancement, similarly taught by Iadanza because Batista and Iadanza are directed to aerosol generating articles, Iadanza states that an aerosol generating article comprising a tobacco sheet may have a more uniform density of tobacco material than an aerosol generating article comprising tobacco shreds, and therefore including both tobacco shreds and a tobacco sheet may be used to vary the density of the tobacco material in the aerosol generating article (Iadanza, [0090], [0100]-[0101]), and this involves combining prior art elements according to known methods to yield predictable results.
Regarding Claim 3-5, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 2. Because Batista further teaches the cigarette wherein the second smoke enhancing agent is butantetrol as claimed in Claim 35 (Batista, pg 11, ln 36 - pg 12, ln 7, Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23), wherein the second smoke enhancing agent has a mass percentage of between 12.5% and 17.5% in the tobacco sheet subjected to smoke enhancement as described in the specification (Batista, pg 12, ln 3-16, The sheet of homogenized tobacco material has an aerosol former (smoke enhancing agent) content of 5% to 30% on a dry weight basis; see instant specification, pg 3, ln 20-26), one of ordinary skill in the art would reasonably expect the tobacco sheet directly manufactured from the tobacco sheet slurry to have a cigarette tar emission of less than or equal to 6 mg/cig, less than or equal to 3 mg/cig, and less than or equal to 1 mg/cig as claimed, absent evidence to the contrary, since the tobacco sheet of the prior art is equivalent to the claimed tobacco sheet.
Regarding Claim 11, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 2. Batista further teaches the cigarette wherein during the manufacturing of the tobacco sheet subjected to smoke enhancement, the second smoke enhancing agent is blended into the tobacco sheet slurry (pg 11, ln 36 - pg 12, ln 7; pg 13, ln 9-35, The homogenized tobacco sheet is formed by 1) mixing (blending) particulate tobacco with the aerosol former (pentitol as applied to Claim 1) to form a homogenized slurry; and 2) casting the slurry as a sheet).
Regarding Claim 12, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 2. Batista further teaches the cigarette wherein the second smoke enhancing agent is attached to a surface of the tobacco sheet subjected to smoke enhancement (pg 11, ln 36 - pg 12, ln 7; pg 13, ln 9-35, The homogenized tobacco sheet is formed by 1) mixing (blending) particulate tobacco with the aerosol former (pentitol as applied to Claim 1) to form a homogenized slurry; and 2) casting the slurry as a sheet. Applicant states that the smoke enhancing agent may be attached to the surface of the tobacco sheet subjected to smoke enhancement by blending; see instant specification, pg 3, ln 27 – pg 4, ln 7).
Regarding Claim 14-16, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 1. Because Batista further teaches the cigarette wherein the first smoke enhancing agent is butantetrol as claimed in Claim 1 (Batista, pg 11, ln 36 - pg 12, ln 7, Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23), and wherein the first smoke enhancing agent has a mass percentage between 12.5% and 17.5% in the tobacco shreds subjected to smoke enhancement as claimed in Claim 1 (Batista, pg 12, ln 3-16, The sheet of homogenized tobacco material has an aerosol former (smoke enhancing agent) content of 5% to 30% on a dry weight basis), one of ordinary skill in the art would reasonably expect the tobacco shreds to have a cigarette tar emission of less than or equal to 6 mg/cig, less than or equal to 3 mg/cig, and less than or equal to 1 mg/cig as claimed, absent evidence to the contrary, since the tobacco shreds of the prior art is equivalent to the claimed tobacco shreds.
Regarding Claim 22, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 1. Batista further teaches the cigarette wherein the first smoke enhancing agent at least partially permeates into the tobacco shreds subjected to smoke enhancement (pg 11, ln 36 - pg 12, ln 7; pg 13, ln 9-35, The homogenized tobacco sheet is formed by 1) mixing particulate tobacco with the aerosol former (pentitol as applied to Claim 1) to form a homogenized slurry; and 2) casting the slurry as a sheet. Tobacco is a porous material as would be known to one of ordinary skill in the art. It is reasonably understood that the aerosol former (smoke enhancing agent) would permeate into the tobacco shreds subjected to smoke enhancement).
Regarding Claim 24, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 2. Batista further teaches the cigarette wherein the first smoke enhancing agent has a melting point of greater than or equal to 30°C (pg 11, ln 36 - pg 12, ln 7, Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol. Erythritol has a melting point of 121°C; see Taylor, [0045]).
Regarding Claim 25, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 2. Because Batista further teaches the cigarette wherein the first and second smoke enhancing agent is butantetrol as claimed in Claims 1 and 35 (Batista, pg 11, ln 36 - pg 12, ln 7, Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23), and wherein the first smoke enhancing agent has a mass percentage between 12.5% and 17.5% in the tobacco shreds subjected to smoke enhancement as claimed in Claim 1 (Batista, pg 12, ln 3-16, The sheet of homogenized tobacco material has an aerosol former (smoke enhancing agent) content of 5% to 30% on a dry weight basis), one of ordinary skill in the art would reasonably expect the second smoke enhancing agent to have low deliquescence, so that a yellow spot projection area of the cigarette subjected to smoke enhancement after placed continuously in an environment of 40°C and 80% RH for 25 hours is less than 50 mm2/cig as claimed, absent evidence to the contrary, since the cigarette of the prior art is equivalent to the claimed cigarette.
Regarding Claim 26, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 2. Guyard teaches the cigarette wherein the first and second smoke enhancing agent is composed of one or more organic compounds (pg 11, ln 36 - pg 12, ln 7, Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol (butantetrol); Butantetrol is an organic compound; see instant specification, pg 7, ln 20-22).
Because Batista further teaches the cigarette wherein the first and second smoke enhancing agent is butantetrol as claimed in Claims 1 and 35 (Batista, pg 11, ln 36 - pg 12, ln 7, Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23), and wherein the first smoke enhancing agent has a mass percentage between 12.5% and 17.5% in the tobacco shreds subjected to smoke enhancement as claimed in Claim 1 (Batista, pg 12, ln 3-16, The sheet of homogenized tobacco material has an aerosol former (smoke enhancing agent) content of 5% to 30% on a dry weight basis), one of ordinary skill in the art would reasonably expect the cigarette subjected to smoke enhancement added with an organic compound to have a unit tar H value of less than or equal to 0.6, or less than or equal to 0.55, or less than or equal to 0.5, or less than or equal to 0.45, or a XHCN value of less than or equal to 60 µg/cig, or a XNNK value of less than or equal to 3.0 µg/cig, or a XNH3 value of less than or equal to 6.5 µg/cig, or a XB[a]P value of less than or equal to 8.2 µg/cig, or a Xphenol value of less than or equal to 25 µg/cig, or a Xcrotonaldehyde value of less than or equal to 12.5 µg/cig as claimed, absent evidence to the contrary, since the cigarette of the prior art is equivalent to the claimed cigarette.
Regarding Claim 32, Batista in view of Iadanza does not teach the cigarette subjected to smoke enhancement wherein a mass ratio of the tobacco sheet subjected to smoke enhancement to the tobacco shreds subjected to smoke enhancement is between 1:9 and 9:1.
The precise mass ratio of the tobacco sheet subjected to smoke enhancement to the tobacco shreds subjected to smoke enhancement would have been considered a result effective variable by one of ordinary skill in the art before the effective filing date of the invention because the uniformity of the density of the tobacco material is a variable which can be modified by the mass ratio of the tobacco sheet subjected to smoke enhancement to the tobacco shreds subjected to smoke enhancement (Iadanza, [0090], [0100]-[0101]). As such, without showing unexpected results, the claimed mass ratio cannot be considered critical. Accordingly, one of ordinary skill in the art before the effective filing date of the invention would have optimized the mass ratio by routine experimentation to obtain the desired density uniformity, since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art (see MPEP § 2144.05, II).
Regarding Claim 34, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 32. Because Batista further teaches the cigarette wherein the first and second smoke enhancing agent is butantetrol as claimed in Claims 1 and 35 (Batista, pg 11, ln 36 - pg 12, ln 7, Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23), and wherein the first smoke enhancing agent has a mass percentage between 12.5% and 17.5% in the tobacco shreds subjected to smoke enhancement as claimed in Claim 1 (Batista, pg 12, ln 3-16, The sheet of homogenized tobacco material has an aerosol former (smoke enhancing agent) content of 5% to 30% on a dry weight basis), one of ordinary skill in the art would reasonably expect a total particulate material produced by the cigarette subjected to smoke enhancement heated by a heating cigarette utensil at 200°C to be greater than or equal to 14.0 mg as claimed, absent evidence to the contrary, since the cigarette of the prior art is equivalent to the claimed cigarette.
Regarding Claim 35, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 2. Batista further teaches the cigarette wherein the second smoke enhancing agent is at least one of butantetrol, pentitol or hexanehexol (pg 11, ln 36 - pg 12, ln 7, Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23).
Regarding Claim 36, Batista in view of Iadanza teaches the cigarette subjected to smoke enhancement according to claim 2, does not teach the cigarette wherein a target tar equivalent of the cigarette subjected to smoke enhancement is Ttarget mg/cig,a mass percentage of the tobacco sheet subjected to smoke enhancement in the aerosol generating substrate is Msheet, a mass percentage of the tobacco shreds subjected to smoke enhancement in the aerosol generating substrate is Mtobacco, a raw materials for manufacturing the tobacco sheet subjected to smoke enhancement comprise tobacco sheet slurry and the first smoke enhancing agent, a cigarette tar emission corresponding to the tobacco sheet directly manufactured from the tobacco sheet slurry is Tsheet mg/cig, a mass percentage of the first smoke enhancing agent in the tobacco sheet subjected to smoke enhancement is Msmoke1, a smoke enhancing coefficient of the first smoke enhancing agent is S1, a limit smoke enhancing tar equivalent of the first smoke enhancing agent is Tlimit1, a smoke enhancing agent content corresponding to the limit smoke enhancing tar equivalent of the first smoke enhancing agent is Msmoke1, the tobacco shreds subjected to smoke enhancement comprise tobacco shreds and the second smoke enhancing agent, a cigarette tar emission corresponding to the tobacco shreds is Ttobacco mg/cig, a mass percentage of the second smoke enhancing agent in the tobacco shreds subjected to smoke enhancement is Msmoke2, a smoke enhancing coefficient of the second smoke enhancing agent is S2, a limit smoke enhancing tar equivalent of the second smoke enhancing agent is Tlimit2, a smoke enhancing agent content corresponding to the limit smoke enhancing tar equivalent of the second smoke enhancing agent is Msmoke2, and the following relationship is satisfied within an error of ±5%: Ttarget= Msheet×( Tsheet+ Tlimit1- S1×( Mlimit1- Msmoke1)2)+ Mtobacco×( Ttobacco+ Tlimit2)- S2×(Mlimit2-Msmoke2)2).
Because Batista further teaches the cigarette wherein the first and second smoke enhancing agent is butantetrol as claimed in Claims 1 and 35 (Batista, pg 11, ln 36 - pg 12, ln 7, Aerosol-generating substrate 20 may comprise a homogenized sheet of tobacco including an aerosol former such as erythritol. Erythritol is also known as butantetrol; see Godleski, col 4, ln 22-23), and wherein the first smoke enhancing agent has a mass percentage between 12.5% and 17.5% in the tobacco shreds subjected to smoke enhancement as claimed in Claim 1 (Batista, pg 12, ln 3-16, The sheet of homogenized tobacco material has an aerosol former (smoke enhancing agent) content of 5% to 30% on a dry weight basis), one of ordinary skill in the art would reasonably expect the cigarette subjected to smoke enhancement to satisfy the relationship: Ttarget= Msheet×( Tsheet+ Tlimit1- S1×( Mlimit1- Msmoke1)2)+ Mtobacco×( Ttobacco+ Tlimit2)- S2×(Mlimit2-Msmoke2)2) within an error of 5%, wherein a target tar equivalent of the cigarette subjected to smoke enhancement is Ttarget mg/cig, a mass percentage of the tobacco sheet subjected to smoke enhancement in the aerosol generating substrate is Msheet, a mass percentage of the tobacco shreds subjected to smoke enhancement in the aerosol generating substrate is Mtobacco, a cigarette tar emission corresponding to the tobacco sheet directly manufactured from the tobacco sheet slurry is Tsheet mg/cig, a mass percentage of the first smoke enhancing agent in the tobacco sheet subjected to smoke enhancement is Msmoke1, a smoke enhancing coefficient of the first smoke enhancing agent is S1, a limit smoke enhancing tar equivalent of the first smoke enhancing agent is Tlimit1, a smoke enhancing agent content corresponding to the limit smoke enhancing tar equivalent of the first smoke enhancing agent is Mlimit1, a tobacco shreds subjected to smoke enhancement comprise tobacco shreds and a second smoke enhancing agent, a cigarette tar emission corresponding to the tobacco shreds is Ttobacco mg/cig, a mass percentage of the second smoke enhancing agent in the tobacco shreds subjected to smoke enhancement is Msmoke2, a smoke enhancing coefficient of the second smoke enhancing agent is S2, a limit smoke enhancing tar equivalent of the second smoke enhancing agent is Tlimit2, a smoke enhancing agent content corresponding to the limit smoke enhancing tar equivalent of the second smoke enhancing agent is Mlimit2, as claimed, absent evidence to the contrary, since the cigarette of the prior art is equivalent to the claimed cigarette.
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 JOHN M. MARTIN whose telephone number is (703)756-1270. The examiner can normally be reached M-F 8:00-5:00.
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/J.M.M./
Examiner, Art Unit 1755
/PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755