DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Status of the Claims
Claims 1-5, 8, 10, 12-14, 16-17, 19, and 21-26 are pending. Claim 25 is withdrawn. Claims 1, 8, 10, 12, and 25 have been amended. Claim 26 is new.
Response to Amendments
The Examiner acknowledges Applicant's response filed on 6/11/2025 containing amendments and remarks to the claims.
Response to Arguments
Applicant's arguments filed 6/11/2025 have been fully considered but they are not persuasive.
Applicant’s arguments, see pages 10-11 of Remarks, with respect to the novelty of claim 1 with respect to Maga are not persuasive as no rejections were made under 35 U.S.C. 102. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Specifically, Applicant argues that Maga does not disclose determining the weight of a tobacco product as Maga discloses determining the weight of pharmaceutical products. This argument is not persuasive as Maga was not relied upon for determining the weight of a tobacco product. Instead, Parmee teaches determining the weight of a tobacco product (see Parmee, Col. 1, Line 8, and the rejection of claim 1 below). Further, Parmee teaches that similar techniques are used for both tobacco products and pharmaceutical products (see Parmee, Col. 1, Lines 46-49).
Additionally, Applicant argues that Maga does not disclose determining a dimension and weight of each of the non-tobacco components or subtracting the calculated weight of each of the non-tobacco components from the total weight of the tobacco product determined by the weighing device. These arguments are not persuasive as Maga in view of Parmee and Whiffen teaches determining a dimension and weight of each of the non-tobacco components and subtracting the calculated weight of each of the non-tobacco components from the total weight of the tobacco product determined by the weighing device (see rejection of claim 1 below).
Applicant’s arguments, see pages 12-14 of Remarks, with respect to the rejection of claim 1 under 35 U.S.C. 103 have been fully considered and are not persuasive. Applicant argues that the limitation of “a processor arranged to subtract the calculated weight of each of the non-tobacco components from the total weight of the tobacco product determined by the weighing device to obtain a weight of the tobacco product” is not disclosed in its entirety by a single prior art reference. However, as discussed in the rejection of claim 1 below, the limitation is taught by the combination of Maga in view of Parmee and Whiffen.
Applicant’s arguments for the remaining claims are unpersuasive for substantially the same reasons discussed above, as the claims depend from claim 1.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-8, 10, 12-14, 16-17, and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Maga et al. (US 2016/0140413 A1) in view of Parmee (US 6,385,284 B1) and Whiffen et al. (US 2020/0375241 A1).
Regarding claim 1, Maga discloses an apparatus (“device 10”, ¶ 0028) arranged to determine a weight of a filling (“weight of the container filling, that is to say the weight of the product 2”, ¶ 0046) in a product (“the whole container 3 including product 2”, ¶ 0045), the product comprising a filling component (“filling quantity of the product 2”, ¶ 0047) and a plurality of container components (“container 3 consisting of a capsule base and a plug-on cap”, ¶ 0029), the apparatus comprising:
a weighing device (“weighing device 44”, ¶ 0029) arranged to determine a total weight of the product;
an imaging device (combination of “x-ray source 28” and “sensor 30”, ¶ 0024) arranged to produce an x-ray image of the product; and
a processor (“evaluation device 14”, ¶ 0037) arranged to:
determine a dimension (“thickness”, ¶ 0039) of each of the container components in the x-ray image (¶ 0039);
calculate a weight of each of the container components based on the dimension (“fifth step 105”, ¶ 0044); and
subtract the calculated weight of each of the container components from the total weight of the product (“sixth step 106”, ¶ 0045) determined by the weighing device (¶ 0029) to obtain a weight of the filling component (“seventh step 107”, ¶ 0046).
Maga does not explicitly disclose using the apparatus to determine a weight of tobacco in a tobacco product, the tobacco product comprising a tobacco component and a plurality of non-tobacco components.
Parmee, in the same field of endeavor, discloses using x-rays (“X-ray beam”, Col. 1, Line 10) to determine the weight of tobacco (“weight, of tobacco”, Col. 1, Line 8) in a tobacco product (“cigarette rod”, Col. 1, Line 8), the tobacco product comprising a tobacco component (“tobacco”, Col. 1, Line 8).
One of ordinary skill in the art would have understood that there was a benefit to using the apparatus of Maga to determine a weight of tobacco in a tobacco product, the tobacco product comprising a tobacco component, in that it would help in maintaining consistency in the weight of the cigarettes (Col. 1, Lines 39-40 of Parmee). 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 used the apparatus taught by Maga to determine a weight of tobacco in a tobacco product, the tobacco product comprising a tobacco component, as taught by Parmee, in order to achieve this benefit.
Parmee does not explicitly disclose that the tobacco product comprises a plurality of non-tobacco components.
Whiffen, in the same field of endeavor, discloses that tobacco products comprise a plurality of non-tobacco components (“paper and metal foil”, ¶ 0014). One of ordinary skill in the art would have understood that there was a benefit to including a plurality of non-tobacco components in the tobacco product in that the non-tobacco components wrap the tobacco into a rod (¶ 0004). 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 included a plurality of non-tobacco components in the tobacco product, as taught by Whiffen, in order to obtain this benefit.
Regarding claim 2, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Whiffen further discloses wherein the tobacco product is a heated tobacco product (“tobacco heating products”, ¶ 0067).
Regarding claim 3, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Whiffen further discloses wherein the tobacco component comprises reconstituted sheet tobacco (“reconstituted tobacco”, ¶ 0048).
Regarding claim 4, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Whiffen further discloses wherein the tobacco product comprises a component which produces a microwave response independent of product density when irradiated with microwaves (“metal foil”, ¶ 0004, 0014).
Regarding claim 5, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Whiffen further discloses wherein the tobacco component is at least partially over-wrapped with a metal or metalized foil (“metal foil”, ¶ 0014).
Regarding claim 8, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Maga further discloses wherein the processor is arranged to analyse the x-ray image to determine the dimension of each of the non-tobacco components, wherein the dimension is a diameter (“thickness”, ¶ 0039, corresponds to the diameter, Fig. 2) of the non-tobacco component.
Regarding claim 10, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Maga further discloses wherein the processor is arranged to calculate a volume (“volume”, ¶ 0039) of each of the non-tobacco components based on the dimension.
Regarding claim 12, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Whiffen further discloses wherein a diameter of a non-tobacco component is a predetermined value (¶ 0035). Maga further discloses wherein a length (length of “contour 24”, Fig. 8, ¶ 0039, 0044) of the non-tobacco component is determined from the x-ray image.
Regarding claim 13, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Maga further discloses wherein the processor is arranged to determine the weight of a non-tobacco component based on a volume of the non-tobacco component and a predetermined value of density for the non-tobacco component (¶ 0039, 0044).
Regarding claim 14, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Maga also discloses the apparatus further comprising a storage device (storage device including “reference objects 35’,35””, ¶ 0033) which stores predetermined values of density of components for each of a plurality of different types of products, wherein the processor is arranged to look up the predetermined values of density in the storage device for a product of a type which is under test (¶ 0033). In the apparatus of the combination, the storage device stores predetermined values of density of non-tobacco components for each of a plurality of different types of tobacco product.
Regarding claim 16, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Maga further discloses wherein the processor is arranged to determine a type of product which is under test based on characteristics of the product in the x-ray image (¶ 0033).
Regarding claim 17, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Maga further discloses wherein the imaging device comprises:
a source of x-ray radiation (“x-ray source 28”, ¶ 0024) arranged to irradiate the tobacco product; and
a sensor (“sensor 30”, ¶ 0024) arranged to detect x-ray radiation from the tobacco product and to produce the x-ray image.
Regarding claim 21, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Maga further discloses wherein the apparatus is an analysing apparatus (“a device . . . for determining the weight of product”, Abstract). Whiffen further discloses wherein the apparatus is an analysing apparatus for offline analysis of tobacco products (“It will also be appreciated that the apparatus may also be independent of, or remote from, the tobacco industry product manufacturing machine 10.”, ¶ 0058).
With regards to the apparatus being “for offline analysis” of the product, this relates to the manner of operating the device which does not differentiate an apparatus claim from the prior art (MPEP 2114(II)). Specifically, “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Because the apparatus of Maga in view of Parmee and Whiffen could be used for an offline analysis of tobacco products, it satisfies the structural limitations imposed by claim 21.
Regarding claim 22, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Whiffen further discloses wherein the apparatus is part of a tobacco product making or combining machine (“tobacco industry product manufacturing machine”, ¶ 0001). One of ordinary skill in the art would have understood that there was a benefit to including the apparatus taught by Maga as part of a tobacco product making or combining machine in that weight corrections can be made early in the manufacturing process (¶ 0058). 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 included the apparatus taught by Maga as part of a tobacco product making or combining machine, as taught by Whiffen, in order to achieve this benefit.
Regarding claim 23, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 22, as stated above. In the apparatus of the combination, as the weighing device is part of the apparatus, and the apparatus is part of the tobacco product making or combining machine, the weighing device is, accordingly, part of the making or combining machine.
Regarding claim 24, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 22, as stated above. Whiffen further discloses wherein the weight of the tobacco component is used to control filling of the tobacco component of tobacco products produced by the tobacco product making or combining machine (¶ 0003).
Regarding claim 26, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 1, as stated above. Whiffen further discloses wherein the non-tobacco components comprise cigarette paper (“paper”, ¶ 0014).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Maga et al. (US 2016/0140413 A1) in view of Parmee (US 6,385,284 B1) and Whiffen et al. (US 2020/0375241 A1) as applied to claim 17 above, and further in view of Trinkies et al. (Wolfgang Trinkies, et al., “X-Ray Absorption Analysis by Image Processing Techniques,” SPIE, vol. 1027, XP055068616, Mar. 2, 1988, pp. 226-231., a copy of which is provided for reference).
Regarding claim 19, Maga in view of Parmee and Whiffen teaches the apparatus according to claim 17, as stated above. However, Maga, Parmee, and Whiffen do not disclose wherein the imaging device is arranged to produce a composite x-ray image from image data produced by the sensor at a plurality of different axial positions of the tobacco product.
Trinkies, in the same field of endeavor, teaches an imaging device (“X-ray instrument”, see “2. Experimental Set-up” on p. 226) arranged to produce a composite x-ray image (“constructed image of the total object”, see “b) Shading correction” on p. 229) from image data produced by the sensor at a plurality of different axial positions of the tobacco product (for “axial density fluctuations” in the “tobacco rod”, see “1. Introduction” on p. 226). Trinkies also teaches an advantage of this x-ray analysis using image processing techniques in that it enhances contrast (“enhance the contrast”, see “1. Introduction” on p. 226). 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 the imaging device taught by Maga in view of Parmee and Whiffen such that it is arranged to produce a composite x-ray image from image data produced by the sensor at a plurality of different axial positions of the tobacco product, as taught by Trinkies, in order to obtain this benefit.
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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/C.G.C./Examiner, Art Unit 1747
/Michael J Felton/Primary Examiner, Art Unit 1747