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 1-13 and 15-18 are pending and are subject to this office action. Claims 1 and 7 are amended.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 02/20/2026 has been entered.
Response to Amendment
The Examiner acknowledges the Applicant’s response filed on 02/02/2026 containing amendments and remarks to the claims.
Response to Arguments
Applicant’s arguments, see pg. 5-7, filed 02/02/2026 with respect to the rejection of claim 7 under 35 U.S.C. 103 have been fully considered and are persuasive. Applicant has amended claim 7 to require that the amorphous solid is blended with a shredded tobacco material and has a cut width of 90-110% the cut with of the shredded tobacco material, which was not previously presented. Mua discloses the sheet is cut into strips and added to a strip blend for making a smoking article (Fig. 1 Step 12, [0018]), but does not explicitly disclose the shredded sheet is blended with a shredded tobacco material. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground of rejection is made in view of newly found prior art.
The rejections below are maintained and modified where necessitated by Applicant’s amendment.
Claim Rejections - 35 USC § 103
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.
Claims 7-13 are rejected under 35 U.S.C. 103 as being unpatentable over Ergle (US 20090038629 A1) in view of Mua (US 20060021626 A1) and Iwanaga (US 20210235747 A1)
Regarding claim 7, Ergle discloses a flavor sheet (“an amorphous solid”, [0014], Example 5, [0077-0078]) for a smoking article, comprising:
25 wt% propylene glycol (“an aerosol former material”), 30 wt% menthol (“a flavorant”), and 45 wt% carboxymethylcellulose (“gelling agent”, Example 5 Sheet 3, [0077-0078]). The amount of gelling agent, aerosol former material, and flavorant lie within the claimed ranges and are therefore considered prima facie obvious.
The flavor sheet may include optional additives such as fillers ([0043]).
The embodiment disclosed in Example 5 is silent to the inclusion of tobacco and is therefore considered to not comprise tobacco.
The flavor sheet is shredded and mixed with shredded tobacco material, the flavor sheet having a cut width of about 1/32” ([0048, 0050-0051]).
In regards to the limitation requiring the weights are calculated on a dry weight basis, The specification defines a dry weight basis as the whole component other than water and the dry weight basis may include components that are liquid at room temperature (pg. 36) . The flavor sheet disclosed by Ergle is dried to remove solvent ([0045]) and therefore the percentages in the finished sheet disclosed in Example 5 ([0077-0078]) are considered to be on a dry weight basis.
An amorphous solid is interpreted as a solid material with a non-crystalline structure. Therefore, the flavor sheet formed by casting a mixture and drying ([0045]) is considered to be an amorphous solid.
Ergle does not explicitly disclose a filler in the form of fibers.
However, Mua, directed to a smokable filler (abstract), discloses:
A sheet comprising a cellulose (“filler in the form of fibers”) in an amount of 5 to 50 wt% of the sheet on a dry weight basis, where the addition of cellulose improves the fill value of the filler material and improves the process of making sheet via a paper making process (claim 7, [0016, 0036]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ergle by including a filler of cellulose in an amount of 5-50wt% as taught by Mua because both Ergle and Mua are directed to smokable materials, Ergle discloses a filler may be included in the flavor sheet but is silent to the inclusion of a fibrous filler, Mua discloses a sheet comprising 5-50 wt% cellulose to improve the fill value, and this involves applying a cellulose material in a known amount to a similar aerosol forming substrate to yield predictable results.
Ergle discloses the flavor sheet may be shredded to a width of about 1/32” and mixed with a shredded tobacco material ([0048, 0050-0051]) but is silent to the cut width of the shredded tobacco material.
However, Iwanaga, directed to a smoking article (14, Fig. 2, [0019]), discloses
A tobacco filler (23) comprising tobacco leaf cut into strips having a width of 0.8-1.2 mm ([0031]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Ergle, in view of Mua, by providing the shredded tobacco material with a cut width of 0.8-1.2mm as taught by Iwanaga because both Ergle and Iwanaga are directed to smoking articles, Ergle discloses including a shredded tobacco material but is silent to the cut width, Iwanaga discloses a tobacco filler having a cut width of 0.8-1.2mm, and one having ordinary skill in the art would be motivated to look to similar aerosol generating articles when selecting the cut width of the tobacco, and this involves applying a known cut width to a shredded tobacco material in a similar aerosol forming substrate to yield predictable results.
Ergle, in view of Mua and Iwanaga, does not explicitly disclose the cut width of the amorphous solid is 90-110% the cut width of the tobacco material. However, Ergle discloses an amorphous solid having a cut with of 1/32” and mixed with shredded tobacco ([0048, 0050-0051]), and Iwanaga discloses a tobacco filler having a cut width of 0.8-1.2mm ([0031]). Therefore, a person having ordinary skill in the art could have reasonably arrived at an aerosol generating material, where the ratio of the cut width of the amorphous solid to the cut width of the shredded tobacco material is in a range that overlaps with the claimed range of 90-110% and is therefore considered prima facie obvious.
Regarding claim 8, Ergle discloses the flavor sheet is shredded ([0048]).
Regarding claim 9, Mua discloses the cellulose fibers may be derived from wood (claim 16, [0026]).
Regarding claim 10, Ergle discloses the flavoring is menthol (Example 5 Sheet 3, [0077-0078]).
Regarding claim 11, Ergle discloses a gelling agent comprising carboxymethylcellulose (Example 5 Sheet 3, [0077-0078]). A hydrocolloid is interpreted as a substance that forms a gel in the presence of water. Therefore, carboxymethylcellulose is considered to meet the claim limitation of the gelling agent comprising a hydrocolloid.
Regarding claim 12, Ergle discloses a gelling agent comprising carboxymethylcellulose (“ a cellulose derivative”, Example 5 Sheet 3, [0077-0078]).
Regarding claim 13, Ergle discloses the flavor sheet comprises 15 to 80% wt% of film forming coagulating materials (“gelling agent”) which may include natural polymers such as carboxymethylcellulose and calcium alginate ([0027, 0031, 0033]). Therefore, a person having ordinary skill in the art could have reasonably provided calcium alginate to the embodiment disclosed in Example 5 ([0077-0078]) where the total gelling agent is in a range of 15 to 80% wt% ([0033]) to arrive at the claimed invention. Calcium alginate is calcium ions crosslinked with alginate and therefore including calcium alginate meets the claim limitation of a calcium crosslinked alginate.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MORGAN FAITH DEZENDORF whose telephone number is (571)272-0155. The examiner can normally be reached M-F 8am-430pm EST.
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/M.F.D./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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