DETAILED ACTION
Response to Arguments
Applicant's arguments filed 5/15/2026 have been fully considered but they are not persuasive.
Applicant argues “Robinson's heating element is itself configured to retain and supply aerosol-forming material and does not operate in conjunction with downstream aerosol-conditioning components of the type required in Malgat. This structural distinction directly affects the functional requirements imposed on the substrate, including density and aerosol former loading. In particular, Malgat requires sufficient aerosol generation upstream to offset downstream aerosol reduction, a constraint not addressed in the Office Action”. This argument, if anything, strengthens the obviousness of an aerosol former content of at least 10 percent. Given that Robinson teaches an aerosol former content of at least 10 percent, if one of ordinary skill in the art considered greater aerosol generation to be required in Malgat relative to Robinson to offset downstream aerosol reduction, then one of ordinary skill would have provided an aerosol former content that is even higher and even more clearly above the claimed minimum of at least 10 percent.
Applicant argues “The person of ordinary skill in the art would not have had a basis to conclude that the same substrate density (Feature A) and aerosol former content (Feature B) described in Robinson are suitable for Malgat. In Robinson, these values are associated with a structure in which the heating element also functions as a material support and supply medium. Malgat, in contrast, employs a susceptor-based heating configuration and separate downstream elements. The Office Action does not explain why the parameter values disclosed in Robinson would satisfy the functional requirements of Malgat's configuration.” There is no requirement in Robinson that the heating element also functions as a material support and supply medium. “Alternatively, the second resistance element 72 can be employed in close proximity to an absorbent wicking material such that aerosol-forming material can be wicked or otherwise transferred so as to contact the second resistance element or contact an area in close proximity to the second resistance element” [0085]. Applicant’s arguments perhaps may be more persuasive if Malgat specifically taught density and aerosol former content levels outside of the claimed ranges. This is not the case. Malgat is simply silent to the density and aerosol former content level. Malgat teaches a solid aerosol-forming substrate comprising shreds of reconstituted tobacco and an aerosol-former [0027-0028], held within a wrapper [0095], and heated to form an aerosol. Robinson teaches a solid aerosol-forming substrate comprising shreds of reconstituted tobacco and an aerosol-former [0050, 0055], held within a wrapper [0028], and heated to form an aerosol. There is no indication in either reference that the density and aerosol former content of Robinson are tied to the specific configuration of Robinson or would be unsuitable for use in the article of Malgat. Given the many similarities between Robinson and Malgat, one of ordinary skill in the art would recognize that the density and aerosol former content of Robinson are applicable to the article of Malgat to achieve predictable results. It is also noted that the claim that “Robinson's article 10 does not include any cooling or filtering features downstream of the tobacco filler material 89” is incorrect. Robinson’s article does include filter features downstream of the tobacco filler material [0106].
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 16-22 are rejected under 35 U.S.C. 103 as being unpatentable over Malgat (US 2019/0075845) in view of Robinson (US 2008/0092912).
Malgat teaches an aerosol-generating article [Fig. 2], comprising: an aerosol-generating substrate 20 [104]; a downstream section (from support element 30 to downstream end 70) extending from a downstream end of the aerosol-generating substrate to a downstream end of the aerosol-generating article; and an upstream section 91 upstream of the aerosol-generating substrate 20, the upstream section having a resistance to draw from 20 to 40 millimeters H2O [0015]. Malgat teaches an aerosol-generating article length of 45 mm [0109] and an aerosol-generating substrate length of 12 mm [0104], i.e. a ratio of a length of the aerosol-generating substrate to a length of the aerosol-generating article is 0.27. Malgat teaches the aerosol-generating substrate comprises shreds of tobacco [0028], i.e. cut tobacco filler.
Malgat is silent to a density of the aerosol-generating substrate. Robinson teaches an aerosol-generating article comprising cut tobacco filler having a density of 0.1 to 0.4 grams per cubic centimeter [0072]. As this is a conventional tobacco cut filler substrate density known in the art, it would have been obvious to one of ordinary skill in the art to apply this density to the cut tobacco filler substrate of Malgat to achieve predictable results.
Malgat teaches the aerosol-generating substrate comprises an aerosol former [0027]. Although the weight percent is not specifically taught, Robinson teaches tobacco cut filler substrate may comprise an aerosol former content of up to 20 percent by weight [0067]. As this is a conventional tobacco cut filler aerosol former level known in the art, it would have been obvious to one of ordinary skill in the art to apply this weight percent to the cut tobacco filler substrate of Malgat to achieve predictable results.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Malgat and Robinson as applied to claim 16 above, and further in view of Aoun (US 2021/0177041).
Modified Malgat does not teach a first ventilation zone at a location along the downstream section. However, this configuration is known in the art as taught by Aoun [0097; Fig. 3] and would have been obvious to one of ordinary skill in the art to apply to the article of modified Malgat to enable air to flow into the article.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Malgat and Robinson as applied to claim 16 above, and further in view of Dubey (US 2022/0192254).
Malgat teaches support element 30 of the downstream section is hollow [0052], i.e. has a low resistance to draw, and that cooling element 40 of the downstream section has a low resistance to draw [0057]. Malgat does not specifically teach the downstream section has a resistance-to-draw of less than about 30 mm H2O. Dubey teaches a downstream section should have a pressure drop (resistance-to-draw) of 29 mm H2O allow sufficient aerosol, including desirable compounds such as flavor compounds, to pass through the mouthpiece to the consumer [0127]. It would have been obvious to one of ordinary skill in the art to apply this RTD to the downstream section of modified Malgat for the reasons above suggested by Dubey.
Claims 28-30 are rejected under 35 U.S.C. 103 as being unpatentable over Malgat and Robinson as applied to claim 16 above, and further in view of Zinovik (US 2017/0055587).
Malgat teaches the aerosol-generating article is used with an aerosol-generating device comprising an inductor (heater) [0100], i.e. configured to heat the aerosol-generating substrate, but does not disclose further details about the device. Zinovik teaches an aerosol-generating device having a distal end and a mouth end, the aerosol-generating device comprising: a body extending from the distal end to the mouth end, the body 10 defining a device cavity 14 configured to removably receive the aerosol-generating article 2 at the mouth end of the aerosol-generating device, and an inductor heater L2 configured to heat the aerosol-generating substrate 20 when the aerosol-generating article 2 is received within the device cavity, the heater of the aerosol-generating device is configured to circumscribe the aerosol-generating article when the aerosol-generating article is received within the device cavity [0078-0079], and the heater has a length of 8-14 mm [0053]. It would have been obvious to one of ordinary skill in the art to apply this configuration to the aerosol-generating device of Malgat to achieve the same, predictable result of heating the substrate and forming an aerosol.
Allowable Subject Matter
Claim 27 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 31 is allowed.
The following is a statement of reasons for the indication of allowable subject matter and of reasons for allowance: Applicant’s arguments filed 1/21/2026 regarding the combination of Malgat and Doppelt have been fully considered and are persuasive.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
THIS ACTION IS MADE FINAL. 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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