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 Claims
Claims 1-6, 9-12, 14-15, 18-19, 21-22, 24-27 and are pending. Claims 1-4, 11-12, 14-15, 18, and 22 are currently amended. Claims 25-27 are new. Claims 7-8, 13, 16-17, 20, and 23 are cancelled.
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
The following references are considered to be in the possession of Applicant and material to the patentability of the claims, because Applicant has cited to these references in the present Specification, ([pg 7 lines 10-26]):
Souza, D.B., et al. Acute effects of caffeine-containing energy drinks on physical performance: a systematic review and meta-analysis. Eur J Nutr 56, 13-27 (2017).
Kristy Lu, et al, The acute effects of L-theanine in comparison with alprazolam on anticipatory anxiety in humans. Human Psychopharmacol Clin Exp 2004; 19; 457-465.
Gail N. Owen, et al The combined effects of L-theanine and caffeine on cognitive performance and mood, Nutritional Neuroscience, 11:4, 193-198 (2008).
T. Giesbrecht, et al (2010) The combination of L-theanine and caffeine improves cognitive performance and increases subjective alertness, Nutritional Neuroscience, 13:6, 283-290).
Suhyeon Kim, t al (2019) GABA and L-theanine mixture decreases sleep latency and improves NREM sleep, Pharmaceutical Biology, 57:1, 64-72).
Applicant is required to make these references available to the Examiner for review in their next response to this Office Action. This request is made based on the duty of disclosure requirements that material information be disclosed to the USPTO, MPEP 2001.05.
Response to Amendment
The Amendment to the claims of 01/30/2026 is entered. Claims 1-4, 11-12, 14-15, 18, and 22 are currently amended. The amendments to the claims, and cancellation of claim 8, overcome each and every claim rejection under 35 USC 112 and thus, these claim rejections are withdrawn.
Response to Arguments
Applicant's arguments filed 01/30/2026 have been fully considered but they are not persuasive.
Applicant has amended all the claims, by virtue of amending the base claims 1 and 11, to now require the previously claimed active material be physiologically active. Physiological or physiologically appears in the present Specification:
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(Specification [pg 4 lines 10-11]), and
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(Specification [pg 7 lines 1-5]).
Thus, the Specification indicates in the broadest sense it the physiological active must be associated with a physiological or psychological effect. The exemplary effects are not required. The specification also discloses that a flavor produces a desired taste, aroma, or other somatosensorial sensation in a user, (Specification [pg 7 lines 31-33]).
The ability of a user to smell or taste a flavorant is considered to be inherently based on the physiological effect on the user, where the sensory receptors of the user respond to the airborne molecules and trigger a physiological response that must include experiencing the taste or smell. Thus, the act of tasting or smelling, inherently causes a physiological response in a user, because the receptors are stimulated by the active and cause the flavor perception to occur based on responses within the body of the user.
Applicant amended claims 2 and 14, which previously recited Markush groups of active materials that were not nicotine, to indicate that each member of these groups are a “physiologically” active material. To the extent that Applicant is asserting each and every component on the list is a physiological active, Examiner takes Applicant at their word.
These claims are considered to be admissions regarding specific materials that are considered physiologically active.
Claims 2 and 14 recite Markush groups that Applicant considers to be physiologically active materials includes, are not nicotine.
Applicant argues that Sutton does not disclose a first portion and a second portion, where the first portion comprises at least one physiologically active material that is not nicotine from this list, and a second portion that comprises a second physiological active material that is different to the first physiological material, arguing that this feature is neither anticipated nor obvious in view of Sutton.
Yet, Sutton discloses two smokeable materials layered in a unitary arrangement, see at least Fig 1:
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Sutton also discloses that the smokeable material be a non-tobacco containing material or a tobacco containing material, and the non-tobacco products may or may not contain nicotine, ([0038]). Sutton discloses a list of components, that Sutton labels as flavorants which are disclosed as materials that may be present in the layers, ([0039]).
Among these are several materials that Applicant’s admit are physiologically active.
Sutton discloses that these flavors may be in any suitable form, for example oil, liquid, powder, or gel”, ([0039]). Sutton anticipates using any of these flavorants in one or both layers of the smokeable materials, thus, anticipating any combination of these flavorants present in one layer or the other layer, where one or both layers may also comprise nicotine and or tobacco, or instead be nicotine and or tobacco free.
There is sufficient overlap of the Applicant’s Markush group and Sutton’s flavorings such that one of ordinary skill in the art selecting a flavoring for one layer according to Sutton, and selecting a second flavor for the second layer of Sutton, anticipates Applicant’s claim.
For example, one or ordinary skill in the art, following the disclosure of Sutton, would make a smoking article consumable with a first layer comprising cinnamon and a second layer comprising tobacco. There is no basis upon which the Examiner can reasonably conclude these flavorants are not physiologically active, even using the Applicant’s most narrow understanding of what that term must include, nor does there appear to Examiner any basis to find the disclosure does not anticipate a multilayered consumable, such as a tobacco containing layer and a cinnamon layer based on the disclosure of Sutton, which anticipates the claim, because Sutton is considered to anticipate choosing to flavor each layer with any of the listed flavorants.
Regarding the rejections grounded in obviousness, Applicant argues against the modification of Sutton according to the teachings of Emmet. 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).
Emmet teaches a technique of using an additive manufacturing system as part of manufacturing a smoking article, ([0006]). Emmet is within the inventor’s field of endeavor, and is thus available for all that it teaches. Applicant argues that Emmet’s technique of manufacture would not be obvious to use in the modification of Sutton, because Emmet discloses preferably using that technique for additively manufacturing layers that only comprise tobacco materials, ([pg 11-12] last full paragraph and carry over paragraph).
Emmet broadly discloses an additive manufacturing technique applicable to forming layers of smokeable materials, where the flavoring preference is non-limiting, ([0007]). Then Emmet teaches a preferred use according to their embodiments, where the feedstocks do not comprise other additives and the natural flavor notes of the tobacco material are not impacted or altered, ([0024]). Thus, while Examiner agrees that Emmet discloses a preferred embodiment for the use of the technique disclosed, such preference is not considered to be limiting.
Applicant asserts that Emmet teaches away from using the additive manufacturing technique with additive that are not tobacco. Examiner respectfully suggests that the Applicant has misapplied the legal standard for “teaching away”. The analysis regarding why Emmet does not teach away from using this technique with non-tobacco additives is discussed below.
Applicant’s reliance upon preferred embodiments as teaching away from modifications to the disclosure of Emmet is misplaced. “Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments.” In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994). MPEP 2123 Rejection Over Prior Art’s Broad Disclosure Instead of Preferred Embodiments, I. Patents Are Relevant As Prior Art For All They Contain.
Reviewing Emmet thoroughly, no evidence was found to suggest that a non-tobacco alternative would not work. There was no active discouragement regarding the use of a non-tobacco substrate, only one that would be reasonably be understood as a mere flavoring preference. One of ordinary skill in the art would reasonably expect the technique of additive printing to work with plant material powders, such that various feedstocks could be employed with the technique of Emmet to form a smoking article consumable with portions comprising those feedstocks and the powdered plant material flavors.
This appears to be simply the combination of prior art elements according to known methods to yield predictable results, MPEP 2143 I. Examples of Rationales, (A). Here the prior art of Sutton contained different layers (portions) comprising different physiologically active materials, which are now produced using the known method from Emmet.
“The Federal Circuit’s discussion in ICON also makes clear that if the reference does not teach that a combination is undesirable, then it cannot be said to teach away. An assessment of whether a combination would render the device inoperable must not ignore the modifications that one skilled in the art would make to a device borrowed from the prior art. Id. at 1382, 83 USPQ2d at 1752.”
Here, when the court is using the word undesirable, the meaning is not preference but rather whether one of ordinary skill in the art would find the combination undesirable because the combination would not be expected to work. This is understood because the next sentence indicates that an assessment of whether the combination would be inoperable requires an additional determination of whether one of ordinary skill in the art could successfully make the modifications necessary to make the combination. The court is additionally understood to be stating that, even if changes might be required based on the substitution in the composition to make a substrate workable, if the reference teaches those changes or one of ordinary skill in the art would reasonably be capable of making those changes, then the combination may still be considered obvious if one of ordinary skill in the art would find it obvious to make the modifications necessary to make the combination.
Emmet teaches the technique of using tobacco dust in an aqueous slurry as part of the additive manufacturing technique. Emmet teaches the tobacco slurry preferably comprises a humectant, and a binder, ([0013]. Sutton teaches the other additives may be in the form of powders, including plant (botanical) additives. One of ordinary skill in the art would be capable of combining these teachings to form the smokeable material layers of Sutton, incorporating additive materials in the form of powders into the feedstocks, with a high expectation of success. There is no discussion in the reference suggesting that the additive manufacturing technique would not work in the absence of tobacco or with the substitution of powdered flavorants. Neither reference teaches away from the use of the additive manufacturing technique of Emmet to modify the disclosure of Sutton.
Applicant arguments are unpersuasive.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 11-12, 14-15, 18-19, 21-22, 24, and 26-27 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sutton et al. (US 2018/0343917 A1).
Regarding claim 11, Sutton discloses:
A unitary aerosol generating component comprising a first portion and a second portion, ([0004], [0040], [0042]; Fig 1 layers 44 and 43, adjacent to each other) (anticipating the structural limitation required by the product by process limitations, see below).
The claim requires that the aerosol generating component is formed by an additive manufacturing process. Thus, the claim 11 and its dependent claims are considered product by process claims.
"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). MPEP 2114 I. Product by Process claims are not limited to the manipulations of the recited steps, only the structure Implied by the steps.
Applicant has asserted in their Specification, pg 3 lines 20-23, that such a process may be used to form an aerosol generating component from one or more feedstock materials, depositing the feedstock material layer by layer. Thus, the broadest reasonable interpretation of the structural limitations required by the product by process limitations only require that the components be present in separate and adjacent layers, since an additive manufacturing process is considered capable of producing such a component configuration and there are no other specific structural limitations suggested by the product by process limitation.
Sutton discloses an article for use with an apparatus for heating smokeable material where the article comprises a carrier, a first layer of smokeable material, and a second layer of smokeable material, where the smokeable material of the first layer differs from the form or chemical composition of the smokeable material of the second layer, ([0004]). Sutton further discloses the smokeable material may comprise a nontobacco material or a tobacco containing materials, where the tobacco may be ground (considered to disclose a powder), ([0038]), and also discloses that the smokeable material comprise a flavorant, which may also be provided in a powder form, ([0039]). Because both the tobacco and non-tobacco materials may be provided in a similar form, one of ordinary skill in the art would immediately envisage using such a form to facilitate and simplify the manufacturing process for forming these layers.
The ability of a user to smell or taste a flavorant is considered to be inherently based on the physiological effect on the user, where the sensory receptors of the user respond to the airborne molecules and trigger a physiological response that must include experiencing the taste or smell. Thus, the act of tasting or smelling, inherently causes a physiological response in a user, because the receptors are stimulated by the active and cause the flavor perception to occur based on responses within the body of the user. Thus, tobacco and the flavorants are considered to inherently meet the limitation of physiologically active material, and nicotine is also considered to be notoriously well known to be a physiologically active material as well. Sutton anticipates claim 11, because it comprises a first portion comprising a first physiologically active material that is not nicotine, and a second portion that comprises a second physiologically active material that is different than the first physiologically active material, arranged as required by the broadest reasonable interpretation of the product by process claims.
Additionally, Sutton also discloses that “smokeable material” includes materials (plural form) and can be a non-tobacco containing material or a tobacco containing material, and the non-tobacco products may or may not contain nicotine, ([0038]). Sutton discloses a list of components, that Sutton labels as flavorants, may be present in one layer or the other:
“extracts (e.g., licorice, hydrangea, Japanese white bark magnolia leaf, chamomile, fenugreek, clove, menthol, Japanese mint, aniseed, cinnamon, herb, wintergreen, cherry, berry, peach, apple, Drambuie, bourbon, scotch, whiskey, spearmint, peppermint, lavender, cardamom, celery, cascarilla, nutmeg, sandalwood, bergamot, geranium, honey essence, rose oil, vanilla, lemon oil, orange oil, cassia, caraway, cognac, jasmine, ylang-ylang, sage, fennel, piment, ginger, anise, coriander, coffee, or a mint oil from any species of the genus Mentha), flavor enhancers, bitterness receptor site blockers,sensorial receptor site activators or stimulators, sugars and/ or sugar substitutes (e.g., sucralose, acesulfame potassium, aspartame, saccharine, cyclamates, lactose, sucrose, glucose, fructose, sorbitol, or mannitol), and other additives such as charcoal, chlorophyll, minerals, botanicals, or breath freshening agents”, ([0039]).
Among these are several materials that Applicant’s admit are physiologically active, see above. Sutton discloses that these flavors may be in any suitable form, for example oil, liquid, powder, or gel”, ([0039]). Sutton anticipates using any of these flavorants in one or both layers of the smokeable materials, anticipating any combination of these flavorants present in one layer or the other layer, where one or both layers may also comprise nicotine and or tobacco, or instead be nicotine and or tobacco free.
There is sufficient overlap of the Applicant’s Markush group and Sutton’s flavorings that one of ordinary skill in the art selecting a flavoring for one layer of Sutton, and selecting a second flavor for the second layer of Sutton, will anticipate Applicant’s claim requiring a first physiologically active material that is not nicotine to be present in a first portion, and a second physiologically active material that is different from the first physiologically active material to be present in the second portion.
Review the list above, Sutton anticipates layers with different flavors where the flavors may be tobacco, ginger, cinnamon, rose oil, coffee (known to contain caffeine), lavender, and others. Thus, it would be anticipatory for one or ordinary skill in the art, following the disclosure of Sutton, to make a smoking article consumable with a first layer comprising cinnamon and a second layer comprising tobacco. There is no basis upon which the Examiner can reasonably conclude these flavorants are not physiologically active, even using the Applicant’s most narrow understanding of what that term must include, nor does there appear to Examiner any basis to find the disclosure does not anticipate a multilayered consumable, such as a tobacco containing layer and a cinnamon layer based on the disclosure of Sutton, which anticipates the claim.
Regarding claim 12, Sutton discloses the aerosol generating component as claimed in claim 11. As in the rejection of claim 11 above, Sutton discloses that each layer of smokable material may comprise different flavorants, where none of the flavorants are tobacco and/or nicotine. Sutton also discloses that there are embodiments where the smokeable material includes tobacco and/or nicotine. Thus, Sutton reasonably suggests that the aerosol generating component comprises at least one further physiologically active material, where at least one layer of the smokeable material comprises nicotine and/or tobacco and at least one flavorant, and the other smokeable layer comprises a different flavorant. Because Sutton discloses tobacco and several flavorants that are in the Markush group listing claimed by Applicant, the use of tobacco and these flavorants anticipate selecting different physiologically active materials for use in the different portions.
Regarding claim 14, Sutton discloses the aerosol generating component as claimed in claim 11.
Sutton discloses flavorants anticipating the limitation of a physiologically active material that is not nicotine, ([0039]), and as in the rejection of claim 11 above, the flavorants of the first and second portions may be different and selected from this list.
Regarding claim 15 and 26, Sutton discloses the aerosol generating component as claimed in claim 11.
Sutton discloses that the smokeable layer may include tobacco and/or nicotine, ([0038]).
Regarding claim 18, Sutton discloses the aerosol generating component as claimed in claim 11.
Sutton discloses that the first and second layers comprise different flavorants, and thus anticipating the claim.
Regarding claim 19, Sutton discloses the aerosol generating component as claimed in claim 11.
As in the rejection of claim 11 above, the first layer and the second layer have different flavorants, selected from the list provided in ([0039]). These flavorants comprise components which inherently will impart a different pH to the layers that they comprise. Thus, the broadest reasonable interpretation of a limitation requiring the different layers to have a different pH, is anticipated by embodiments where the flavorants inherently have a different pH impact on the layer, inherently anticipating the limitation requiring the pH of the layers to be different.
Regarding claims 21-22, 24 and 27, Sutton discloses the aerosol generating component as claimed in claim 11. Sutton discloses an aerosol generating system comprising the aerosol generating component as claimed in 11, where the delivery system may be a non-combustion system, comprising a cartridge comprising the aerosol generating component and the apparatus comprising a heater, ([0064]-[0065]).
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(s) 1-6 and 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Sutton et al. (US 2018/0343917 A1), in further in view of Emmett (US 2018/0177222 A1).
Regarding claim 1 and 9-10, Sutton discloses:
A unitary aerosol generating component comprising a first portion and a second portion, ([0004], [0040], [0042]; Fig 1 layers 44 and 43, adjacent to each other) (meeting the structural limitation of the product by process limitations);
wherein the first portion comprises at least one active that is not nicotine and the second portion comprises a second active that is different to the first active, ([0050] the first and second layers of smokeable material may have different chemical compositions, [0052] the first and second layers may comprise a first flavorant, and the other layer may comprise a different flavorant). Sutton discloses that the first and second layers are arranged on a carrier, and may be bonded to a carrier by an adhesive, but also discloses that the smokeable layers may be arranged on the carrier by some other mechanism, ([0040]). Sutton discloses that the flavorants may be in any suitable form, which includes powder, ([0039]). Sutton does not disclose additively manufacturing the unitary aerosol generating component.
Emmet teaches a method of making a three dimensional tobacco object for incorporation in a smoking article, ([0001]), and is thus within the inventor’s field of endeavor. Emmet teaches an additive manufacturing system that uses tobacco dust to form a slurry supplied to a print heat, and dispensing the slurry by means of the print head to form successive layers of a tobacco object, ([0006]) where a series of layers of a material are laid down under computer control and whereby multiple passes of a print head with build up the item, but that alternative techniques are also encompassed by the additive manufacturing system, ([0007]). While Emmet discloses a slurry comprising tobacco powder (a feedstock) and that a layer may be made from the slurry by an additive process, Emmet does not disclose a second feedstock, or that either of the feedstocks may comprise a flavorant.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have formed the unitary aerosol generating component by the additive manufacturing process taught by Emmet, modified by the ordinary skill in the art, to make the component of Sutton.
Emmet discloses a known technique of using an additive manufacturing process to make a smoking article. That technique includes using a a feedstock slurry made with tobacco powder. Sutton discloses smokeable material with at least two different flavorants, which can be provided in powder form. It would be obvious modify the technique of Emmet, to provide two different feedstocks comprising different flavorants, to provide the two different layers with different flavorants, disclosed by Sutton. It would be obvious to provide a second feedstock, with a different powdered flavorant, to a second print head, to form the second smokeable layer with the second flavorant, in order to make the component disclosed by Sutton. Duplicating the printing means of Emmet to provide for the printing of the second layer, is considered obvious, MPEP 2144.04 VI. B Duplication of Parts, where one of ordinary skill would be motivated to provide the mechanism to make the second layer with a second additive by additive manufacturing to provide the component as disclosed by Sutton. In the alternative, one of ordinary skill would also be motivated to change the first feedstock for the second feedstock, to additively print the component layers in series.
Regarding claim 2, Sutton discloses the aerosol generating component as claimed in claim 1.
Sutton discloses flavorants anticipating the limitation of an active that is not nicotine, ([0039]), and as in the rejection of claim 1 above, the flavorants of the first and second portions may be different and selected from several of the components appearing on this list, ([0039]).
Regarding claim 3, 5-6, Sutton discloses the aerosol generating component as claimed in claim 1. Sutton discloses that the smokeable layer may include tobacco and/or nicotine, ([0038]), which would meet the limitation of a third additive in the aerosol generating component, where the aerosol generating component comprises nicotine and/or tobacco material.
Regarding claim 4 and 25, Sutton discloses the process as claimed in claim 3 and the aerosol generating component as claimed in 12.
Sutton discloses that by having a first and second layer of smokeable material, with different quantities of smoke modifying agents or flavorants, a change in flavor of the generated aerosol for user inhalation is achievable, ([0052]). Sutton does not disclose at least one further feedstock material (a third feedstock) used to form the aerosol generating component.
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified Sutton to provide an additional layer of smokeable material with different flavorants. This is considered the mere duplication of parts, MPEP 2144.04 Legal Precedent as Source of Supporting Rationale, VI. B. Duplication of Parts. Mere duplication of parts has no patentable significance, unless a new and unexpected result is produced. Here one of ordinary sill in the art would have appreciated that by providing an additional layer of smokeable material with a third flavorant, a plurality of changes in the flavor of the generated aerosol for user inhalation is achievable, which is considered an obvious modification given the listing of compatible flavorants provided by Sutton. One of ordinary skill in the art would have been motivated to do so, for the purpose of including additional flavors that one of ordinary skill would have reasonably believed to be pleasing to the consumer.
Additionally, It would be obvious further modify the technique of Emmet, to provide a further different feedstocks comprising the further different flavorant, to provide the three different layers with different flavorants, considered an obvious further modification of Sutton. It would be obvious to provide the further feedstock, with a different powdered flavorant, to a further print head, to form the third smokeable layer with the further flavorant, in order to make the obvious component disclosed by modified Sutton. Duplicating the printing means of Emmet to provide for the printing of the third layer, is also considered obvious, MPEP 2144.04 VI. B Duplication of Parts, where one of ordinary skill would be motivated to provide the mechanism to make the further layer with a further additive by additive manufacturing to provide the component as disclosed by modified Sutton. In the alternative, one of ordinary skill would also be motivated to change the feedstocks in series, to additively print the component layers in series.
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 DANIEL E VAKILI whose telephone number is (571)272-5171. The examiner can normally be reached Monday - Friday 7:30 am - 4:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H. Wilson can be reached at (571) 270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.E.V./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747