DETAILED ACTION
Response to Arguments
Applicant's arguments filed 12/15/2025 have been fully considered but they are not persuasive.
Applicant argues that Fursa only teaches the use of tobacco in the coating and does not teach or suggest isolated nicotine. The Examiner disagrees. Fursa teaches the coating comprises additional components such as nicotine [0036]. It is clear that this is referring to isolated nicotine and not nicotine found within tobacco.
Applicant argues that one of ordinary skill in the art would not have looked to Mironov to have considered the modifying the coating of Fursa. The Examiner disagrees. Fursa teaches the coating is in the form of an aerosol former and nicotine-containing gel [0030]. Fursa is silent to the weight percentages of the components. One of ordinary skill in the art would have looked to the weight percentages of aerosol former and nicotine-containing gels known in the art, such as that of Mironov. The aerosol former and nicotine-containing gel of Fursa is heated to form an aerosol. The aerosol former and nicotine-containing gel of Mironov is heated to form an aerosol. One of ordinary skill in the art would have found the weight percentages of the gel of Mironov relevant and applicable to the gel coating of Fursa, regardless of any differences in the specific location or configuration of the gel.
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 15-19, 21-23, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Fursa (US 2019/0216133) in view of Mironov (US 2018/0352862).
Regarding claims 15, 21, and 28, Fursa teaches an aerosol-generating article for producing an inhalable aerosol upon heating [0001], the aerosol-generating article comprising: an aerosol-generating element 2 comprising aerosol-generating substrate 22 [Fig. 3], wherein the aerosol-generating substrate comprises a homogenized tobacco material comprising aerosol former [0046-0047]; and a susceptor 11 arranged within the aerosol-generating element and configured to heat the homogenized tobacco material [0004, 0044], the susceptor being coated with a coating composition comprising aerosol former and nicotine (isolated nicotine) [0028, 0036, 0047, 0053]. Fursa is silent to a weight percentage of the components. However, Fursa does teach the coating may be in the form of an aerosol-forming gel [0030]. Mironov teaches an aerosol-generating article including an aerosol-forming gel [0004] comprising at least 70 percent by weight of glycerol (aerosol former) and 2 percent by weight nicotine (isolated nicotine) [0056]. As this is a conventional aerosol-forming gel composition known in the art, it would have been obvious to one of ordinary skill in the art to use these concentrations for the aerosol-forming gel coating of Fursa to achieve predictable results, i.e. forming an aerosol including nicotine and other components for delivery to the user. The method of manufacturing the article thus reads on the claimed method.
Regarding claim 16, Fursa teaches the susceptor 11 is surrounded by the homogenized tobacco material 22 [Fig. 3].
Regarding claim 17, Fursa teaches the susceptor is an elongate susceptor and extends longitudinally within the aerosol-generating element [0016].
Regarding claim 18, Fursa teaches the homogenised tobacco material is provided as a gathered sheet of homogenised tobacco material [0046].
Regarding claim 19, Fursa does not teach a gelling agent. Mironov teaches a gelling agent that forms a solid medium [0037, 0051], which would have been obvious to one of ordinary skill in the art to include in Fursa to form a gel. The formation of the gel is interpreted to result in the aerosol former dispersed in the solid medium and the isolated nicotine dispersed in the aerosol former.
Regarding claim 22, Fursa teaches the coating composition forms a layer on an outer surface of the susceptor, the layer having a thickness of 100 micrometers [0081].
Regarding claim 23, as Fursa teaches the aerosol former provides certain properties [0058], one of ordinary skill in the art would have found it obvious to optimize the relative proportion of the aerosol former content in the coating composition and the overall content in the article as a matter of routine experimentation to achieve the desired effects.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Fursa and Mironov as applied to claim 19 above, and further in view of Leah (US 2022/0408791)
Fursa teaches the aerosol former comprises glycerol [0059]. Modified Fursa does not teach the claimed gelling agent. Leah teaches an aerosol generating article comprising CMC or HPMC as a gelling agent [0111]. As it is prima facie obvious to substitute or combine art recognized equivalents known for the same purpose, it would have been obvious to one of ordinary skill in the art to include CMC or HPMC as a gelling agent in modified Fursa to achieve predictable results.
Claims 24-25 are rejected under 35 U.S.C. 103 as being unpatentable over Fursa and Mironov as applied to claim 15 above, and further in view of Oleg (US 2019/0124981).
Fursa teaches the article further comprises a support element and a mouthpiece element at a location downstream of the support element [0068-0069]. Fursa does not teach the support element is located immediately downstream of the aerosol-generating element, the support element being in longitudinal alignment with the aerosol-generating element and comprising a hollow tubular segment. Oleg teaches an aerosol-generating article comprising support element 30 located immediately downstream of the aerosol-generating element 20, the support element 30 being in longitudinal alignment with the aerosol-generating element 20 and comprising a hollow tubular segment [Fig. 1; 0082]. As this is a conventional support element arrangement known in the art, it would have been obvious to one of ordinary skill in the art to apply to the article of modified Fursa to achieve predictable results.
Claim 26 rejected under 35 U.S.C. 103 as being unpatentable over Fursa and Mironov as applied to claim 15 above, and further in view of Malgat (US 2019/0075845).
Modified Fursa does not teach the claimed upstream section. Malgat teaches an aerosol-generating article comprising an upstream section at a location upstream of the aerosol-generating element, the upstream section comprising an upstream element 90/91 positioned immediately upstream of the aerosol-generating element 20 [Fig. 1-2] and having a resistance to draw (RTD) of less than about 80 mm H2O [0015]. It would have been obvious to one of ordinary skill in the art to include this upstream element with the article of modified Fursa to prevent direct physical contact with a distal end of the elongate susceptor arranged longitudinally within the aerosol-forming substrate as suggested by Malgat [0004].
Claim 27 rejected under 35 U.S.C. 103 as being unpatentable over Fursa in view of Mironov and Batista (US 2017/0181472).
See the rejection of claims 15 and 28. Fursa in view of Mironov teaches all of the limitations of except for those directed to a protective layer. Batista teaches an aerosol-forming cartridge including a protective layer applied over an aerosol-forming substrate which is then removed to expose the substrate [0069]. It would have been obvious to one of ordinary skill in the art to apply a protective layer over the coating composition of modified Fursa, and remove the protective layer to expose the coating composition and provide an unprotected coated susceptor, to protect the coating composition prior to removal of the protective layer.
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