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 § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-5, 7, 8 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Campbell et al. (US 5613505).
Campbell discloses in reference to claim:
An article (fig. 12B) for use with apparatus 500 for heating smokable material to volatilize at least one component of the smokable material, wherein the article comprises: a mass of smokable material TM, and at least one heating substrate 400 (including individual wires 400 shown in fig. 10b) that consists entirely of heating material,
wherein the heating material (SM) is a magnetic material heatable by penetration with a varying magnetic field to heat the smokable material –
[NOTE: Applicant discloses the broadest interpretation of a magnetic material at as follows: [0059] Magnetic hysteresis heating is a process in which an object made of a magnetic material is heated by penetrating the object with a varying magnetic field. A magnetic material can be considered to comprise many atomic-scale magnets, or magnetic dipoles. When a magnetic field penetrates such material, the magnetic dipoles align with the magnetic field. Therefore, when a varying magnetic field, such as an alternating magnetic field, for example as produced by an electromagnet, penetrates the magnetic material, the orientation of the magnetic dipoles changes with the varying applied magnetic field. Such magnetic dipole reorientation causes heat to be generated in the magnetic material. Magnetic material is therefore interpreted to be any material that capable of Magnetic hysteresis heating. An induction source produces an alternating electromagnetic (EM) field which induces a heat generating eddy current in the susceptor. The discrete element of any suitable susceptor material SM heats the web W which is in intimate thermal contact therewith.]
wherein the mass of smokable material TM is on the substrate 400 (on both top and bottom surfaces), and wherein an exterior of the article has a length, a width perpendicular to the length, and a depth perpendicular to each of the length and the width, wherein the length is greater than or equal to the width, and wherein the width is greater than the depth. See Figure 10A
Regarding the limitation that the substrate consists entirely of heating material, it is noted that the substrate 400 is disclosed as functional as a susceptor as described in reference to FIG. 10A. Further Campbell discloses integral layer 400 can be a screen, mesh or perforated foil (note that a perforated foil can be considered both a “flat strip” and “planar”) of a suitable susceptor material and is intermeshed with, and preferably encapsulated or completely surrounded by, the tobacco flavor medium TM, as shown in FIGS. 10A and 10B and further discloses “possibly suitable susceptor materials may include conductive carbon such as graphite, aluminum, stainless steel, copper, bronze, or any combination thereof with aluminum alone or in combination being preferred.” [col. 9, line 65 to col. 10,line1) One of skill would interpret the scope of the teachings of Campbell to include a susceptor 400 made entirely of a heating material. Regarding the limitation that the substrate is within the mass of smokable material. Note Figure 10A shows the susceptor material 400 being located entirely within the smokable material TM.
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Regarding the new limitations wherein the substrate is a flat strip and planar, and wherein the cross section of the substrate is constant along the length of the substrate, Applicant discloses:
[0085] In each of the articles 1, 2, 3 shown in FIGS. 1 to 5, the cross section of the substrate 20 is constant along the length of the substrate 20. Moreover, in these embodiments, the substrate 20 is planar, or substantially planar. The substrate 20 of each of these embodiments could be considered a flat strip. However, in other embodiments, this may not be the case.
It is noted that the disclosure does not provide any definition of “flat strip” aside from linking it to having a constant cross-section along the length of the substrate. Likewise it is noted that the disclosure does not provide any definition of “planar” aside from linking it to having a constant cross-section along the length of the substrate. As such the term “flat strip” and “planar” does not serve to add definition the claim in any disclosed way. As such, for the purpose of examination, the term “flat strip” and “planar” is considered to be met by any substrate structure that has a cross section that is constant along the length of the substrate.
Campbell discloses: “A particularly preferred embodiment is shown in FIGS. 10A-C. The susceptor comprises an integral layer 400 having various discontinuities 410 therethrough. For example, integral layer 400 can be a screen, mesh or perforated foil of a suitable susceptor material and is intermeshed with, and preferably encapsulated or completely surrounded by, the tobacco flavor medium TM, as shown in FIGS. 10A and 10B.” Noting again that a perforated foil can be considered both a “flat strip” and “planar” having cross section that is constant along the length of the substrate, Campbell teaches the substrate can be considered both a “flat strip” and “planar”.
2. The article of claim 1, wherein the mass of smokable material TM is fixed relative to the exterior of the article. See Figure 12B, TM is fixed relative to the exterior of the article.
3. The article of claim 1, wherein the heating material comprises one or more materials selected from the group consisting of: aluminum, gold, iron, nickel, cobalt, conductive carbon, graphite, plain-carbon steel, stainless steel, ferritic stainless steel, copper, and bronze. Note that Campbell discloses Possibly suitable susceptor materials may include conductive carbon such as graphite, aluminum, stainless steel, copper, bronze, or any combination thereof with aluminum alone or in combination being preferred. Materials having similar ranges of electrical resistivity and magnetic permeability can be employed alone or in combination. A desired susceptor thickness is between approximately 0.25 and 0.5 mil.
4. The article of claim 1, wherein the heating material is in contact with the smokable material. Note Campbell teach an intimate configuration of the smokable material and the heating means. The discrete element of any suitable susceptor material SM heats the web W which is in intimate thermal contact therewith.
5. The article of claim 1, wherein the heating material extends to opposite longitudinal ends of the mass of smokable material. See Fig. 10A
7. The article of claim 1, wherein the mass of smokable material defines at least a portion of the exterior of the article. Note the article is shown in Figure 10A the TM is clearly a portion of the exterior.
8. The article of claim 1, wherein the smokable material comprises reconstituted smokable material or is in the form of one of a gel, agglomerates, compressed material, or bound material. Fig. 10A shows the use of TM as the smokable material. Campbell further discloses in reference to TM that the web W may be made of the tobacco flavor medium TM itself, formed into an elongated sheet form by methods that are well known in, e.g., the manufacture of reconstituted tobacco products, as shown is FIG. 12A. The tobacco flavor medium is mixed with susceptor material SM as discussed above in reference to
FIG. 8 if the web is used in the embodiment of FIG. 11, and, if desired, with the embodiment of FIG. 13 employing a separate susceptor element.
Campbell discloses the provision of magnetic field generators for generating a varying magnetic field to be used in heating the smokable material when the portion of the article is located in the heating zone.
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Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-5, 7, 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Campbell et al. (US 5613505).
Campbell discloses in reference to claim:
An article (fig. 12B) for use with apparatus 500 for heating smokable material to volatilize at least one component of the smokable material, wherein the article comprises: a mass of smokable material TM, and a substrate 400 that consists entirely of heating material,
wherein the heating material (SM) is a magnetic material heatable by penetration with a varying magnetic field to heat the smokable material –
[NOTE: Applicant discloses the broadest interpretation of a magnetic material at as follows: [0059] Magnetic hysteresis heating is a process in which an object made of a magnetic material is heated by penetrating the object with a varying magnetic field. A magnetic material can be considered to comprise many atomic-scale magnets, or magnetic dipoles. When a magnetic field penetrates such material, the magnetic dipoles align with the magnetic field. Therefore, when a varying magnetic field, such as an alternating magnetic field, for example as produced by an electromagnet, penetrates the magnetic material, the orientation of the magnetic dipoles changes with the varying applied magnetic field. Such magnetic dipole reorientation causes heat to be generated in the magnetic material. Magnetic material is therefore interpreted to be any material that capable of Magnetic hysteresis heating. An induction source produces an alternating electromagnetic (EM) field which induces a heat generating eddy current in the susceptor. The discrete element of any suitable susceptor material SM heats the web W which is in intimate thermal contact therewith.]
wherein the mass of smokable material TM is on the substrate 400 (on both top and bottom surfaces), and wherein an exterior of the article has a length, a width perpendicular to the length, and a depth perpendicular to each of the length and the width, wherein the length is greater than or equal to the width, and wherein the width is greater than the depth. See Figure 10A
Regarding the limitation that the substrate consist entirely of heating material, it is noted that the substrate 400 is disclosed as functional as a susceptor as described in reference to FIG. 10A. Further Campbell discloses integral layer 400 can be a screen, mesh or perforated foil of a suitable susceptor material and is intermeshed with, and preferably encapsulated or completely surrounded by, the tobacco flavor medium TM, as shown in FIGS. 10A and 10B and further discloses “possibly suitable susceptor materials may include conductive carbon such as graphite, aluminum, stainless steel, copper, bronze, or any combination thereof with aluminum alone or in combination being preferred.” [col. 9, line 65 to col. 10,line1) One of skill would interpret the scope of the teachings of Campbell to include a susceptor 400 made entirely of a heating material. Regarding the limitation that the substrate is within the mass of smokable material. Note Figure 10A shows the susceptor material 400 being located entirely within the smokable material TM.
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Regarding the new limitations wherein the substrate is a flat strip, and wherein the cross section of the substrate is constant along the length of the substrate, Applicant discloses:
[0085] In each of the articles 1, 2, 3 shown in FIGS. 1 to 5, the cross section of the substrate 20 is constant along the length of the substrate 20. Moreover, in these embodiments, the substrate 20 is planar, or substantially planar. The substrate 20 of each of these embodiments could be considered a flat strip. However, in other embodiments, this may not be the case.
It is noted that the disclosure does not provide any definition of “flat strip” aside from linking it to having a constant cross-section along the length of the substrate. As such the term “flat strip” does not serve to add definition the claim in any disclosed way. As such, for the purpose of examination, the term “flat strip” is considered to be met by any substrate structure that has a cross section that is constant along the length of the substrate.
Campbell discloses in figure 8 a discrete substrate 300 having a cross section that is constant along the length of the substrate. The web W comprises or bears tobacco flavor medium. The web can have the general configuration described above in reference to FIGS. 8-10C. From this one of skill would understand that the configuration shown in Fig. 8 can be readily used in a more planar (non-cylindrical) application. Further, one of skill would then find it obvious that the embodiments shown in fig. 8 and fig. 10a, both being disclosed as useable in reference to fig. 12*, could be combined so as to yield a discrete substrate 300 (taught by fig. 8) being encapsulated by the TM (as taught by fig. 10a).
It would have been obvious to one of skill in the art having the knowledge, creativity and common sense typically brought to bear when considering combinations or modifications to the state of the art to provide an embodiment of inductively heated tobacco medium having the combined structures shown in fig. 8 and 10a such as to arrive at the claimed invention combining the benefits of each of the configurations.
2. The article of claim 1, wherein the mass of smokable material TM is fixed relative to the exterior of the article. See Figure 12B, TM is fixed relative to the exterior of the article.
3. The article of claim 1, wherein the heating material comprises one or more materials selected from the group consisting of: aluminum, gold, iron, nickel, cobalt, conductive carbon, graphite, plain-carbon steel, stainless steel, ferritic stainless steel, copper, and bronze. Note that Campbell discloses Possibly suitable susceptor materials may include conductive carbon such as graphite, aluminum, stainless steel, copper, bronze, or any combination thereof with aluminum alone or in combination being preferred. Materials having similar ranges of electrical resistivity and magnetic permeability can be employed alone or in combination. A desired susceptor thickness is between approximately 0.25 and 0.5 mil.
4. The article of claim 1, wherein the heating material is in contact with the smokable material. Note Campbell teach an intimate configuration of the smokable material and the heating means. The discrete element of any suitable susceptor material SM heats the web W which is in intimate thermal contact therewith.
5. The article of claim 1, wherein the heating material extends to opposite longitudinal ends of the mass of smokable material. See Fig. 10A
7. The article of claim 1, wherein the mass of smokable material defines at least a portion of the exterior of the article. Note the article is shown in Figure 10A the TM is clearly a portion of the exterior.
8. The article of claim 1, wherein the smokable material comprises reconstituted smokable material or is in the form of one of a gel, agglomerates, compressed material, or bound material. Fig. 10A shows the use of TM as the smokable material. Campbell further discloses in reference to TM that the web W may be made of the tobacco flavor medium TM itself, formed into an elongated sheet form by methods that are well known in, e.g., the manufacture of reconstituted tobacco products, as shown is FIG. 12A. The tobacco flavor medium is mixed with susceptor material SM as discussed above in reference to
FIG. 8 if the web is used in the embodiment of FIG. 11, and, if desired, with the embodiment of FIG. 13 employing a separate susceptor element.
Campbell discloses the provision of magnetic field generators for generating a varying magnetic field to be used in heating the smokable material when the portion of the article is located in the heating zone.
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Claim 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Campbell.
Campbell discloses the claimed invention except specficially that a portion of the substrate protrudes beyond an end of the mass of smokable material.
See Figure 12G where the ends of the TM (591) are separated by areas of substrate web 592. The web W comprises or bears tobacco flavor medium. The web can have the general configuration described above in reference to FIGS. 8-10C. Fig. 10a discloses a flexible susceptor layer (or substrate 400) This discontinuous susceptor can be employed to heat tobacco flavor medium in any desired geometrical shape for smoking. One of skill in the art would recognize from the disclosure of Campbell that the configuration of fig. 10A could be modified to fit the geometrical configuration as shown in fig. 12G wherein a portion of the substrate 400 protrudes beyond an end of the mass of smokable material TM since it is disclosed that the configuration of fig 10A is particularly useful as a flexible article.
Response to Arguments
Applicant's arguments filed 01/28/2026 have been fully considered but they are not persuasive.
Applicant argues that Campbell fails to teach the substrate as both a flat strip and planar, suggesting that the wire mesh 400 indicated as the substrate can not be considered planar due to the circular cross-section of the wire. It is noted again, as above, that the use of a perforated foil in place of the wire mesh would meet the definitions of “flat strip” and “planar” as put forth in the Applicant’s disclosure. Additionally, applicant argues that the Examiner relies on a combination of the embodiments of Figures 8 and 10A used in a web as depicted in Figure 11. Figure 8 describes an embodiment in which a discrete susceptor layer is placed on one side of the tobacco medium to provide an impermeable vapor barrier.
Applicant argues a constant cross section substrate, as described in relation to Figure 8, is required to be impermeable, however Applicant does not provide sufficient evidence that Campbell “requires” impermeability of the substrate. Note that figure 8 suggests the overwrap 310 provides the impermeability that may be desired. Further note that a perforated foil of the of Campbell acts as a flat strip, planar substrate where the perforations act as the discontinuities desirable to provide improved heat transfer and flow of aerosols (see col. 10, line 44 to col. 11, line 26).
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 THOR S CAMPBELL whose telephone number is (571)272-4776. The examiner can normally be reached on M,W-F 6:30-10:30, 12-4.
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, Ibrahime Abraham can be reached on 5712705569. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/THOR S CAMPBELL/Primary Examiner, Art Unit 3761
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