DETAILED ACTION
Response to Arguments
Applicant’s arguments in view of amendment filed 4/1/2026 with respect to the rejection of claim 1 under 103 over Bell and Barber have been fully considered and are persuasive. Bell and Barber do not teach the volatile component source contains nicotine. Therefore, the rejection has been withdrawn. However, with respect to the rejection of claim 8 in the previous Office action, Osborne and Niven both teach the volatile component source contains nicotine. Applicant’s arguments do not address why it would not have been obvious to one of ordinary skill in the art to apply Osborne or Niven to the method of Bell and Barber in order to arrive at the claimed invention. This combination is applied now to claim 1 as detailed below.
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 1-4, 6-7, and 9-17 are rejected under 35 U.S.C. 103 as being unpatentable over Bell (US 2016/0205992) in view of Barber (US 2014/0026907), and further in view of Niven (US 4,727,889) or Osborne (US 4,150,677)
Regarding claims 1-3, 9, and 12-13, Bell teaches method of a treating tobacco, the method comprising: providing a starting tobacco composition that is pH-treated to raise the pH [0028] (treatment has adversely affected the sensory and/or organoleptic qualities of the tobacco composition). Bell does not teach heating a volatile component source to provide volatilized components. Barber teaches heating a volatile component source to provide volatilized components and infusing the starting tobacco composition with the volatilized components by condensing the volatilized components in the presence of the starting tobacco material, thereby retaining at least some volatile components in the starting tobacco composition to provide an infused tobacco composition [0023-0029]. It would have been obvious to one of ordinary skill in the art to incorporate these method steps into the method of Bell, either before or after pH treatment, for superior imparting of an organoleptic quality as suggested by Barber [0094].
Modified Bell teaches various botanical examples for the donor product (volatile component source) [Barber 0005] but does not teach that it comprises tobacco or nicotine. Niven teaches heating cut burley tobacco (volatile component source containing nicotine) to provide volatilized components and infusing flue-cured tobacco (starting tobacco composition) with the volatilized components [Example 1]. It would have been obvious to one of ordinary skill in the art to include tobacco as the volatile component source of modified Bell to improve or enhance the taste characteristics as suggested by Niven [col. 1, I. 24-30]. Thus, the infused tobacco composition has a nicotine content higher than the starting tobacco composition. Alternatively, Osborne teaches heating cut tobacco (volatile component source containing nicotine) to provide volatilized components and infusing flue-cured tobacco (starting tobacco composition) with the volatilized components [page 8, l. 52 to page 9, l. 22]. It would have been obvious to one of ordinary skill in the art to include tobacco as the volatile component source of modified Bell to yield enhanced organoleptic properties as suggested by Osborne [col. 2, l. 65-67]. Thus, the infused tobacco composition has a nicotine content higher than the starting tobacco composition.
Regarding claim 4, modified Bell teaches the volatile component source is heated to 40°C or 90°C [Barber 0061].
Regarding claim 6, Bell teaches the starting tobacco composition is a reconstituted tobacco [0038].
Regarding claim 7, Bell teaches the starting tobacco material is granular [0082].
Regarding claims 10-11, Bell teaches the nicotine content of the starting tobacco composition is from 0.2% to 4% by dry weight [0040]. Osborne teaches a 29% increase in nicotine content [1.11 mg to 1.43 mg – Table 2]. The range of nicotine content of the infused tobacco composition would thus be 0.3% to 5.1%, also overlapping with the claimed range of 2% to 5.5%.
Regarding claims 14-16, modified Bell teaches the volatile component source comprises a botanical comprising coffee or mint [Barber 0061].
Regarding claim 17, Bell teaches treating either the starting tobacco composition or infused tobacco composition to raise the pH comprises addition of a base [0062].
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Bell, Barber, and Niven or Osborne as applied to claim 1 above, and further in view of Kelly (US 3,968,804).
Bell as disclosed above teaches the starting tobacco composition is a pH-treated tobacco composition. Bell teaches the starting tobacco composition comprised reconstituted tobacco [0038] but does not teach extruding a mixture comprising tobacco, base, and a wetting agent. Kelly teaches preparing reconstituted tobacco comprises extruding a mixture comprising tobacco, calcium carbonate (base), and a humectant (wetting agent) [col. 3, l. 64 to col. 4, l. 23]. As this is a conventional method of forming reconstituted tobacco known in the art, it would have been obvious to one of ordinary skill in the art to apply to the method of Bell to achieve predictable results, i.e. providing a reconstituted tobacco to be infused.
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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/ERIC YAARY/Examiner, Art Unit 1755
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