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 and 4-10 are pending and are subject to this office action. Claims 1, 7, and 8 are amended. Claims 2-3 are canceled.
Response to Amendment
The Examiner acknowledges the Applicant’s response filed on 04/14/2026 containing amendments and remarks to the claims.
Response to Arguments
Applicant’s arguments, see pg. 5-6 filed 04/14/2026, with respect to the rejection of claims 3 and 7 under 35 U.S.C. 112(b) have been fully considered and are persuasive. Applicant has canceled claim 3, corrected the antecedent basis issue in claim 7, and removed the limitation requiring that the nicotine transfer is increased in claim 7. Therefore, the rejections of claim 3 and 7 under 35 U.S.C. 112(b) are withdrawn.
Applicant’s arguments, see pg. 6-8, filed 04/14/2026, with respect to the rejection of independent claims 1 and 8 under 35 U.S.C. 103 have been fully considered and are persuasive. Applicant has amended claims 1 and 8 to require the pH adjuster is potassium carbonate in an amount of 3.5 to 5 parts per weight by 100 parts by weight of the pulverized tobacco material, which was not previously presented. Ajitkumar (US 20200054064) discloses the pH adjuster may include potassium carbonate ([0065]) but does not disclose potassium carbonate in the claimed amount. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground of rejection is made in view of a combination of previously applied art and newly found prior art.
Thus, the prior art rejections below are maintained and modified based on Applicant’s amendment.
Claim Objections
Applicant has amended claim 7 to recite, “the pulverized tobacco material” to be consistent with the recitation in claim 1. Therefore, the objection to claim 7 is withdrawn.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 4, and 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over AJITHKUMAR US 20200054064 (“AJITHKUMAR”) in view of ARNDT US 20220218016 (“ARNDT”) and AJITHKUMAR US 20210153541 A1 (“AJITHKUMAR ‘3541”).
As to claim 1, AJITHKUMAR discloses a tobacco medium comprising:
PNG
media_image1.png
597
533
media_image1.png
Greyscale
a pulverized tobacco material (Table 1’s Samples 3–6’s “Tobacco powder”; [0074–76]); and
a pH adjuster (Table 1’s Samples 3–6’s “Basic PH modifier” [0065]),
wherein the tobacco medium includes at least 70 wt% of the pulverized tobacco material on a dry weight basis (Table 1’s Samples 3–6’s “Tobacco powder” have a dry weight basis between 72.83–74.08);
a PH of the tobacco medium is in a range of 6 to 9 (see above).
The pH adjuster may be potassium carbonate ([0065]).
While AJITHKUMAR discloses that the tobacco medium may have a total nicotine content between 4–8 mg ([0062]), AJITHKUMAR fails to explicitly disclose the total weight of the final tobacco medium in Tables 1–2—preventing one of ordinary skill in the art from ascertaining dry weight basis of nicotine in the pulverized tobacco material and the tobacco medium. Accordingly, AJITHKUMAR fails to explicitly disclose:
1) the pulverized tobacco material includes at least 4 wt% of nicotine on a dry weight basis, and
2) the tobacco medium includes at least 2.8 wt% of nicotine on a dry weight basis.
ARDNT teaches a pulverized tobacco material includes at least 4 wt% of nicotine on a dry weight basis ([0099]’s “The tobacco particles may have a nicotine content of at least about 2.5 percent by weight, based on dry weight. More preferably, the tobacco particles may have a nicotine content of at least about 3 percent, even more preferably at least about 3.2 percent, even more preferably at least about 3.5 percent, most preferably at least about 4 percent by weight, based on dry weight.”).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the specific teachings of ARDNT into the generic disclosure of AJITHKUMAR’s tobacco material for the benefit of aerosol-generating substrate could provide an aerosol with a sensorial experience that is comparable to that provided by a conventional combustible cigarette (as taught by ARDNT at [0007]). See MPEP § 2144.05 (I) (explaining “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.”) and id. (citing one decision which “found that the overlapping endpoint of the prior art and claimed range was sufficient to support an obviousness rejection, particularly when there was no showing of criticality of the claimed range.”).(annotation added)
The above makes obvious 1) the pulverized tobacco material includes at least 4 wt% of nicotine on a dry weight basis.
The obvious combination of ARDNT’s 4% of nicotine into samples 3–6 in Table 1 of AJITHKUMAR also arrives at 2) the tobacco medium includes at least 2.8 wt% of nicotine on a dry weight basis. Please see below:
AJITHKUMAR
Table 1 Samples
Dry wt% of Tobacco Powder from
AJITHKUMAR’s Table 1
Dry wt% of Nicotine in Tobacco Powder from ARDNT
Dry wt% of Nicotine in overall Tobacco Medium or
(Column 2) x (Column 3) =
Tobacco medium includes at least 2.8 wt% of nicotine on a dry weight basis?
Sample 3
74.08
4%
2.963
Yes
Sample 4
73.15
4%
2.926
Yes
Sample 5
73.55
4%
2.942
Yes
Sample 6
72.83
4%
2.913
Yes
As demonstrated above, the obvious combination of ARDNT’s tobacco powder with 4% of nicotine into samples 3–6 in Table 1 of AJITHKUMAR arrives at the tobacco medium includes at least 2.8 wt% of nicotine on a dry weight basis.
AJITHKUMAR does not explicitly disclose the pH adjuster is in an amount of 3.5-5 parts per 100 parts of pulverized tobacco material.
However, AJITHKUMAR ‘3541, directed to a homogenized botanical material ([0001]), discloses:
The homogenized botanical material may have a basic pH modifier content of less than or equal to about 10% by weight on a dry weight basis ([0049]).
The basic pH modifier enhances the release of nicotine ([0033, 0208]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify AJITHKUMAR, in view of ARDNT, by providing the pH modifier is an amount of less than 10 wt% as taught by AJITHKUMAR ‘3541 because both AJITHKUMAR and AJITHKUMAR ‘3541 are directed to tobacco materials, AJITHKUMAR ‘3541 teaches disclosing including a pH modifier in a known range to enhance the release of nicotine, and this involves applying a pH modifier in a known range in a similar tobacco material to yield predictable results.
AJITKUMAR discloses the tobacco medium includes at least 70 wt% of the pulverized tobacco material on a dry weight basis (Table 1’s Samples 3–6’s “Tobacco powder” have a dry weight basis between 72.83–74.08) and the pH adjuster may be potassium carbonate ([0065]). AJITKUMAR ‘3541 discloses homogenized botanical material comprising a basic pH modifier content of less than or equal to about 10% by weight on a dry weight basis ([0049]). Therefore, a person having ordinary skill in the art could have reasonably arrived at a tobacco medium comprising potassium carbonate in an amount that overlaps with the claimed range of 3.5 to 5 parts per 100 parts by weight pulverized tobacco and is therefore considered prima facie obvious.
As to claim 4, AJITHKUMAR and ARDNT make obvious the tobacco medium according to claim 1.
AJITHKUMAR further discloses wherein the tobacco medium is manufactured in a form of reconstituted tobacco leaves ([0200]).
As to claim 8, AJITHKUMAR discloses an aerosol-generating article (claim 14 and [0196]) comprising:
a tobacco medium (Table 1 reproduced below),
PNG
media_image1.png
597
533
media_image1.png
Greyscale
a pulverized tobacco material (Table 1’s Samples 3–6’s “Tobacco powder”; [0074–76]); and
a pH adjuster (Table 1’s Samples 3–6’s “Basic PH modifier” [0065]),
wherein the tobacco medium includes at least 70 wt% of the pulverized tobacco material on a dry weight basis (Table 1’s Samples 3–6’s “Tobacco powder” have a dry weight basis between 72.83–74.08);
a PH of the tobacco medium is in a range of 6 to 9 (see above),
The pH adjuster may be potassium carbonate ([0065]).
While AJITHKUMAR discloses that the tobacco medium may have a total nicotine content between 4–8 mg ([0062]), AJITHKUMAR fails to explicitly disclose the total weight of the final tobacco medium in Tables 1–2—preventing one of ordinary skill in the art from ascertain thing dry weight basis of nicotine in the pulverized tobacco material and the tobacco medium. Accordingly, AJITHKUMAR fails to explicitly disclose:
1) the pulverized tobacco material includes at least 4 wt% of nicotine on a dry weight basis, and
2) the tobacco medium includes at least 2.8 wt% of nicotine on a dry weight basis.
ARDNT teaches a pulverized tobacco material includes at least 4 wt% of nicotine on a dry weight basis ([0099]’s “The tobacco particles may have a nicotine content of at least about 2.5 percent by weight, based on dry weight. More preferably, the tobacco particles may have a nicotine content of at least about 3 percent, even more preferably at least about 3.2 percent, even more preferably at least about 3.5 percent, most preferably at least about 4 percent by weight, based on dry weight.”).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the specific teachings of ARDNT into the generic disclosure of AJITHKUMAR’s tobacco material for the benefit of aerosol-generating substrate could provide an aerosol with a sensorial experience that is comparable to that provided by a conventional combustible cigarette (as taught by ARDNT at [0007]). See MPEP § 2144.05 (I) (explaining “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.”) and id. (citing one decision which “found that the overlapping endpoint of the prior art and claimed range was sufficient to support an obviousness rejection, particularly when there was no showing of criticality of the claimed range.”) (annotation added)
The above makes obvious 1) the pulverized tobacco material includes at least 4 wt% of nicotine on a dry weight basis.
The obvious combination of ARDNT’s 4% of nicotine into samples 3–6 in Table 1 of AJITHKUMAR also arrives at 2) the tobacco medium includes at least 2.8 wt% of nicotine on a dry weight basis. Please see below:
AJITHKUMAR
Table 1 Samples
Dry wt% of Tobacco Powder from
AJITHKUMAR’s Table 1
Dry wt% of Nicotine in Tobacco Powder from ARDNT
Dry wt% of Nicotine in overall Tobacco Medium or
(Column 2) x (Column 3) =
Tobacco medium includes at least 2.8 wt% of nicotine on a dry weight basis?
Sample 3
74.08
4%
2.963
Yes
Sample 4
73.15
4%
2.926
Yes
Sample 5
73.55
4%
2.942
Yes
Sample 6
72.83
4%
2.913
Yes
As demonstrated above, the obvious combination of ARDNT’s tobacco powder with 4% of nicotine into samples 3–6 in Table 1 of AJITHKUMAR arrives at the tobacco medium includes at least 2.8 wt% of nicotine on a dry weight basis.
AJITHKUMAR does not explicitly disclose the pH adjuster is in an amount of 3.5-5 parts per 100 parts of pulverized tobacco material.
However, AJITHKUMAR ‘3541, directed to a homogenized botanical material ([0001]), discloses:
The homogenized botanical material may have a basic pH modifier content of less than or equal to about 10% by weight on a dry weight basis ([0049]).
The basic pH modifier enhances the release of nicotine ([0033, 0208]).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify AJITHKUMAR, in view of ARDNT, by providing the pH modifier is an amount of less than 10 wt% as taught by AJITHKUMAR ‘3541 because both AJITHKUMAR and AJITHKUMAR ‘3541 are directed to tobacco materials, AJITHKUMAR ‘3541 teaches disclosing including a pH modifier in a known range to enhance the release of nicotine, and this involves applying a pH modifier in a known range in a similar tobacco material to yield predictable results.
AJITKUMAR discloses the tobacco medium includes at least 70 wt% of the pulverized tobacco material on a dry weight basis (Table 1’s Samples 3–6’s “Tobacco powder” have a dry weight basis between 72.83–74.08) and the pH adjuster may be potassium carbonate ([0065]). AJITKUMAR ‘3541 discloses homogenized botanical material comprising a basic pH modifier content of less than or equal to about 10% by weight on a dry weight basis ([0049]). Therefore, a person having ordinary skill in the art could have reasonably arrived at a tobacco medium comprising potassium carbonate in an amount that overlaps with the claimed range of 3.5 to 5 parts per 100 parts by weight pulverized tobacco and is therefore considered prima facie obvious.
As to claim 9, AJITHKUMAR and ARDNT make obvious the aerosol-generating article according to claim 8.
AJITHKUMAR further discloses wherein the aerosol-generating article generates an aerosol without combustion when heated at a heating temperature ([0007] and [0205–206]).
Additionally, Modified AJITHKUMAR, by making obvious the aerosol-generating article claimed, is considered to arrive at wherein the aerosol-generating article generates an aerosol without combustion when heated at a heating temperature See MPEP § 2112.01(I) (explaining when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent).
As to claim 10, AJITHKUMAR and ARDNT make obvious the aerosol-generating article according to claim 9.
Modified AJITHKUMAR, by making obvious the aerosol-generating article claimed, is considered to arrive at wherein the heating temperature is in a range of 30 °C to 180 °C. See MPEP § 2112.01(I) (explaining when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent).
Claim(s) 5–7 are rejected under 35 U.S.C. 103 as being unpatentable over AJITHKUMAR US 20200054064 (“AJITHKUMAR”) in view of ARNDT US 20220218016 (“ARNDT”) and AJITHKUMAR US 20210153541 A1 (“AJITHKUMAR ‘3541”), as applied in the rejection of claim 1 above, and in further view of, CHEN CN 112438424 (“CHEN”) (with reference made to the attached machine translation).
As to claim 5, AJITHKUMAR and ARDNT make obvious the tobacco medium according to claim 4.
AJITHKUMAR and ARDNT fail to disclose wherein the form of granules is a structure including a core and a shell surrounding the core.
CHEN teaches wherein the form of granules is a structure including a core and a shell surrounding the core (Abstract, bottom of page 2, claim 3, also note that the fourth full paragraph on page 4 explains that this feature can be used with both combustion cigarettes and cigarettes intended to be heated “without combustion” without impacting the taste).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the teachings of CHEN into the disclosure of modified AJITHKUMAR for the benefit of improved moisture consistency and limiting volatile components within the tobacco granule from leaking out of the granule core (as taught by CHEN at bottom of page 3 and extending onto page 4).
As to claim 6, AJITHKUMAR and ARDNT make obvious the tobacco medium according to claim 4.
AJITHKUMAR and ARDNT fail to disclose wherein the tobacco medium further includes a coating layer on an outside of the reconstituted tobacco leaves or granules.
CHEN teaches wherein the tobacco medium (Fig. 1, 1, page 5) further includes a coating layer on an outside of the reconstituted tobacco leaves or granules (Fig. 1, coating layers 2 and 3; page 5; also note that the fourth full paragraph on page 4 explains that this feature can be used with both combustion cigarettes and cigarettes intended to be heated “without combustion” without impacting the taste).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the teachings of CHEN into the disclosure of modified AJITHKUMAR for the benefit of improved moisture consistency and limiting volatile components within the tobacco granule from leaking out of the granule core (as taught by CHEN at bottom of page 3 and extending onto page 4).
As to claim 7, AJITHKUMAR and ARDNT make obvious the tobacco medium according to claim 4.
AJITHKUMAR and ARDNT fail to disclose wherein the coating layer has pores where nicotine from the pulverized tobacco material is emitted.
CHEN teaches wherein the tobacco medium (Fig. 1, 1, page 5) further includes a coating layer on an outside of the reconstituted tobacco leaves or granules which has pores to increase an amount of nicotine transfer from the tobacco material (Fig. 1, coating layers 2 and 3; page 5; also note that the fourth full paragraph on page 4 explains that this feature can be used with both combustion cigarettes and cigarettes intended to be heated “without combustion” without impacting the taste).
It would have been obvious to one of ordinary skill in the art as of the effective filing date to incorporate the teachings of CHEN into the disclosure of modified AJITHKUMAR for the benefit of improved moisture consistency and limiting volatile components within the tobacco granule from leaking out of the granule core (as taught by CHEN at bottom of page 3 and extending onto page 4).
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 MORGAN FAITH DEZENDORF whose telephone number is (571)272-0155. The examiner can normally be reached M-F 8am-430pm EST.
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, Philip Louie can be reached at (571) 270-1241. 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.
/M.F.D./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
Prosecution Insights