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, 3, 5, 9-12, 14, 17, 22, 23, 27, 28, 32, 33, 37, 41, 49, 51, 52 and 56 are pending.
Claims 1, 12 and 28 have been amended.
Response to Arguments
Applicant’s arguments, filed 1/24/2026, have been fully considered and are persuasive. The Applicant has amended claim 1 to include limitations that were not previously presented. The prior art of record does not appear to disclose the new limitations. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of McAdam.
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 (i.e., changing from AIA to pre-AIA ) 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, 3, 22, 23, 28, 32, 49 and 52 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hess (US 3429316) in view of Uren (US 20160366926) and further in view of McAdam (US 6289897).
Regarding claims 1, 3, 28 and 32, Hess teaches an aerosol generating material (abstract) comprising: a reconstituted plant material (col. 1, lines 10-16) containing a mixture of at least two different plant fibers, the reconstituted plant material containing: (1) extracted plant fiber fibers, specifically extracted cocoa husk fibers (col. 2, lines 5-20); combined with: (2) (a) extracted tobacco fibers, specifically reconstituted tobacco (col. 1, lines 10-25) which has been subject to an extraction process including contacting tobacco fibers with an aqueous solution (col. 2, lines 48-62).
Hess teaches that the reconstituted plant material further comprises web building fibers (col. 3, lines 62-68) but does not expressly teach that the fibers comprise delignified cellulose fibers ([0015]), wherein “delignified” cellulose fibers is explicitly defined in paragraph [0042] of the instant specification.
Uren teaches an aerosol generating material (abstract) comprising a reconstituted plant material containing a mixture of at least two different plant fibers. Uren teaches that the reconstituted plant material further comprises web building fibers comprising delignified cellulose fibers ([0015]), wherein “delignified” cellulose fibers is explicitly defined in paragraph [0042] of the instant specification. It would have been obvious for one of ordinary skill in the art at the time of filing to have made a filler or binder of Hess out of delignified cellulose fibers, as suggested by Uren, with a reasonable expectation of success and predictable results as a filler or binder.
Modified Hess does not expressly teach that the extracted plant fiber fibers, specifically the extracted cocoa husk fibers, are subjected to an extraction process which includes contacting the fibers with an aqueous solution.
McAdam teaches a smokable filler material for smoking articles that comprises extracted cocoa along with tobacco (claims 1 and 4). McAdam teaches that the extracted cocoa has been subjected to an extraction process which includes contacting the cocoa with an aqueous solution (col. 10, lines 46-55). It would have been obvious for one of ordinary skill in the art at the time of filing to have included extracted cocoa that has been subjected to an extraction process which includes contacting the fibers with an aqueous solution, as suggested by McAdam, as the extracted cocoa in Hess with a reasonable expectation of success and predictable results, specifically controlling smoke delivery in terms of their effect on the smoking characteristics (col. 10, lines 55-60).
Regarding the limitations, “subjected to an extraction process …. to remove water soluble components contained in the plant fibers,” and “subjected to an extraction process …. to remove water soluble components contained in the tobacco fibers” the removal of the water soluble components is a result of the fibers being contacted with an aqueous solution. As the fibers are contacted with an aqueous solution, these limitations are met.
Regarding claims 22 and 49, modified Hess teaches that the aerosol generating material is in the form of a filler material comprising shreds of the reconstituted plant material (col. 4, lines 64-66).
Regarding claims 23 and 52, modified Hess teaches that the aerosol generating material may be the filler of a cigarette (col. 3, lines 63-68), wherein the filler reads on the smokable rod comprising the aerosol generating material, and a cigarette has an outer wrapper surrounding the smokable rod.
Claim(s) 5 and 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hess in view of Uren in view of McAdam as applied to claims 1 and 28 above, and further in view of Fleming (US 4813438).
Regarding claims 5 and 33, modified Hess does not expressly teach that the reconstituted plant material is blended with the claimed herbal material.
Fleming teaches a cigarette, cigar and pipe smoking composition which includes vegetable fibers (col. 1, lines 5-10), specifically the preferred vegetable fibers are the bran of wheat, oats, rye and barley (col. 2, lines 48-52). It would have been obvious for one of ordinary skill in the art at the time of filing to have included the preferred vegetable fibers taught by Fleming in the reconstituted plant material of modified Hess to create a pleasant tasting and well performing smoking product.
Claim(s) 9-12 and 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hess in view of Uren in view of McAdam as applied to claim 1 and 28 above, and further in view of Wanna (US 20050056294).
Regarding claim 37, modified Hess does not expressly teach the reconstituted plant materials has been treated with a humectant.
Wanna teaches a reconstituted tobacco sheet for use in smoking articles (abstract) which includes the addition of a humectant such as glycerin or propylene glycol in an amount of up to 30% by weight (claims 9-11). It would have been obvious for one of ordinary skill in the art at the time of filing to have included glycerin or propylene glycol in an amount of up to 30% by weight to modified Hess, as suggested by Wanna, for the purpose of sheet pliability ([0046]).
Claim(s) 14, 17, 41 and 51 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hess in view of Uren in view of McAdam as applied to claims 1, 28 and 32 above, and further in view of Turner (US 9532593).
Regarding claims 14, 17, 41 and 51, modified Hess does not expressly teach that the reconstituted plant material further comprises an aerosol delivery composition containing an aerosol delivery agent.
Turner teaches an herbal smoking blend that can be used as a filler within a rolling paper, similar to a cigarette (col. 4, lines 49-55). Turner teaches additionally adding a terpenoid to the smoking blend (col. 1, lines 30-35). It would have been obvious for one of ordinary skill in the art at the time of filing to have included a terpenoid in the aerosol generating material of modified Hess, as suggested by Turner, because terpenoids provide therapeutic effects (col. 4, lines 15-24).
Claim(s) 27 and 56 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hess in view of Uren in view of McAdam as applied to claims 1 and 28 above, and further in view of Philips (US 20150223520).
Regarding claims 27 and 56, modified Hess teaches an aerosol generating material as defined in claim 1 and 28, respectively.
Modified Hess does not expressly teach specifically which smoking article is applied to heat the aerosol generating material.
Philips teaches a smoking article (Fig. 1) comprising a heating device (2) and a chamber (13), the chamber containing aerosol generating material (3), the heating device being positioned so as to heat the aerosol generating material for producing an inhalable aerosol without burning the aerosol generating material ([0095]). Thus, it would have been obvious for one of ordinary skill in the art at the time of filing to have heated the aerosol generating material of modified Hess in the smoking article of Philips in order to volatilize components of the smokable material for inhalation (abstract) with a reasonable expectation of success and predictable results.
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 YANA B KRINKER whose telephone number is (571)270-7662. The examiner can normally be reached Monday, Wednesday, Thursday and Friday.
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YANA B. KRINKER
Examiner
Art Unit 1755
/YANA B KRINKER/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755