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 .
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.
Claim(s) 16-18, 23-27 is/are rejected under 35 U.S.C. 103 as being unpatentable over UTHURRY (WO 2020/128043) in view of OLEGARIO et al. (US 2008/0216851).
Uthurry teaches an aerosol-generating article for producing an inhalable aerosol upon heating, the aerosol-generating article extending from a mouth end to a distal end (see figure 1). Uthurry teaches an aerosol-generating element (12) having a diameter from about 5 mm to about 12 mm (page 7 lines 17-18), which incorporates the claimed range of about 6 millimeters to about 7.5 millimetres, and comprising an aerosol-generating substrate (abstract). Uthurry teaches the aerosol-generating substrate comprising an aerosol-former (abstract); and a downstream section (14, 16, 18) at a location downstream of the aerosol-generating element, the downstream section extending from a downstream end of the aerosol-generating element to the mouth end of the aerosol-generating article (see figure 1), wherein the downstream section comprises a hollow tubular element (14) and a ventilation zone (26) at a location along the hollow tubular element, wherein the hollow tubular element abuts the aerosol-generating element (see figure 1). Uthurry teaches the aerosol-generating article has a ventilation level of at least about 10 percent (abstract). Uthurry teaches that the aerosol generating element has a preferred embodiment of a diameter of 7.2 mm (page 7 lines 20-21) and a length of about 12 mm (page 7 lines 30-31), wherein a length to diameter ratio of the aerosol-generating element is 1.67 which falls into the claimed range of from about 0.5 to about 2.75. Uthurry teaches an aerosol-former content in the aerosol-generating substrate is at least about 10 percent (abstract) which falls into the claimed range of at least 8 percent by weight.
Uthurry teaches the aerosol-generating substrate further comprises tobacco filler (page 8 lines 29-30-32) but is silent to tobacco cut filler.
Olegario teaches an aerosol-generating article for producing an inhalable aerosol upon heating, the aerosol-generating article extending from a mouth end to a distal end (see figures) and comprising an aerosol-generating element (10) comprising an aerosol-generating substrate (12), the aerosol-generating substrate comprising an aerosol-former (abstract); and a downstream section (20) at a location downstream of the aerosol-generating element, the downstream section extending from a downstream end of the aerosol-generating element to the mouth end (24) of the aerosol-generating article, wherein the downstream section comprises a hollow tubular element (48) and a ventilation zone (para. 0041, 40 in figures 4-6) at a location along the hollow tubular element, wherein the aerosol-generating article has example ventilation levels of 71, 70, 69, 60, and 47 (Table 1) which fall into the claimed range of at least about 10 percent, and wherein the aerosol-generating substrate further comprises tobacco cut filler (para. 0021) and an aerosol-former content in the aerosol-generating substrate is about 4% to about 35% (para. 0021) which overlaps with the claimed range of at least about 8 percent by weight.
It would have been obvious to one of ordinary skill in the art to modify the aerosol-generating substrate of Uthurry to include tobacco cut filler because Uthurry teaches the aerosol-generating substrate may comprise other additives including fillers, tobacco fibers and combinations thereof (page 8 lines 29-32).
Regarding claim 17, Uthurry teaches that the aerosol generating element has a preferred embodiment of a diameter of 7.2 mm (page 7 lines 20-21) and a length of about 12 mm (page 7 lines 30-31), wherein a length to diameter ratio of the aerosol-generating element is 1.67 which falls into the claimed range of from about 1.3 to about 1.9.
Regarding claim 18, Uthurry teaches that the aerosol generating element has a preferred embodiment of a length of about 12 mm (page 7 lines 30-31) which falls into the claimed range of from about 10 millimetres to about 35 millimetres.
Regarding claim 23, Uthurry teaches the aerosol-former content in the aerosol-generating substrate is at least about 10 percent by weight (abstract).
Regarding claim 24, Uthurry teaches a distance between the ventilation zone and the mouth end of the aerosol-generating article is less than 18 mm (abstract) which falls into the claimed range of less than about 20 millimetres.
Regarding claim 25, Uthurry teaches the hollow tubular element has a length of at least about 10 millimetres (page 12 line 34) and figure 1 shows a cross-section of the hollow tubular element (14) is substantially constant.
Regarding claim 26, figures 1 and 2 of Uthurry show the hollow tubular element (14 and 16) extends all the way to the mouth end of the aerosol- generating article.
Regarding claim 27, Uthurry teaches the downstream section has an RTD of 0 mm H2O to 20 mm H2O (page 19 lines 17-19) which falls into eth claimed range of less than about 50 millimetres H2O.
Claim(s) 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over UTHURRY (WO 2020/128043) in view of OLEGARIO et al. (US 2008/0216851) as applied to claim 16 above, and further in view of BAGGETT JR et al. (US 5,499,636).
Uthurry as modified by Olegario teaches an aerosol generating article. Uthurry is silent to the density of the tobacco cut filler in the aerosol generating element.
Baggett teaches an aerosol generating element for use in an aerosol-generating article. Baggett teaches that the aerosol generating element comprises tobacco cut filler in a packing density of 170 to 300 milligrams/cubic centimeter (col. 9 lines 53-55) which falls into the claimed range of at least about 100 milligrams/cubic centimeter. It would have been obvious to one of ordinary skill in the art to use the packing density suggested by Baggett in the aerosol generating element of Uthurry because Baggett teaches that this range provides a balance between aerosol delivery and the avoidance of loose ends (col. 9 lines 62-65).
Regarding claim 20, Olegario teaches that the tobacco cut filler comprises at least 50% tobacco materials (para. 0027) which falls into the claimed range of at least about 25 percent. Baggett teaches the tobacco cut filler comprises tobacco leaf lamina (col. 13 lines 15-18). It would have been obvious to one of ordinary skill in the art to use tobacco leaf lamina as the tobacco materials of Uthurry because Uthurry teaches the aerosol-generating substrate may comprise other additives including fillers, tobacco fibers and combinations thereof (page 8 lines 29-32).
Claim(s) 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over UTHURRY (WO 2020/128043) in view of OLEGARIO et al. (US 2008/0216851) as applied to claim 16 above, and further in view of LAVANCHY et al. (WO 2020/115151).
Uthurry as modified by Olegario teaches an aerosol generating article having tobacco cut filler. Olegario teaches tobacco cut filler comprises particles (para. 0027) but is silent to the cut width of the particles.
Lavanchy teaches an aerosol-generating article for producing an inhalable aerosol upon heating. Lavanchy teaches the aerosol generating element has tobacco cut filler having a cut width from about 0.3 millimetres to about 2.0 millimetres (page 3 line 36 – page 4 line 1). It would have been obvious to one of ordinary skill in the art to use the tobacco cut width suggested by Lavanchy in the aerosol generating element of Uthurry because Lavanchy teaches that this cut width helps with the distribution of heat inside the aerosol generating substrate (page 4 lines 3-4).
Regarding claim 22, Lavanchy teaches that the aerosol-generating element is preferably between 245 and 270 milligrams (page 10 lines 13-14). Uthurry teaches that the tobacco content of the aerosol-generating element is preferably at least about 40% (page 8 lines 21-22) wherein, given the aerosol-generating element weight suggested by Lavanchy, would result in a tobacco cut filler weight of between 122.5 and 135 mg in the case of 50% tobacco content, which falls into the claimed range at least about 100 milligrams.
Response to Arguments
Applicant's arguments filed September 18, 2025 have been fully considered but they are not persuasive.
Applicant argues that Olegario does not teach or suggest the claimed length to diameter ratio or that the hollow tubular element abuts the aerosol generating element; however, the claims have now been rejected over Uthurry in view of Olegario to teach this new limitation.
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 CYNTHIA SZEWCZYK whose telephone number is (571)270-5130. The examiner can normally be reached Mon-Fri 10 am - 6 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alison Hindenlang can be reached at 571-270-7001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/CYNTHIA SZEWCZYK/Primary Examiner, Art Unit 1741