Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 2-3, 5-12, 15, 21 and 27-28 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Reznick et al. (WO 2008090552) (U.S Pub. No. 20100108086 for citation) in view of Northway et al. (U.S Patent No. 5810020).
Regarding claim 2, Reznick discloses a method of making a stabilized tobacco product, comprising:
adding at least one first chelator to smokeless tobacco in an amount effective to reduce or preventing tobacco associated loss of peroxidase activity (Abstract, [0041-0042] and [0115]); therefore it would have been obvious to one of ordinary skill in the art at the time the invention was made to reduce the amount of free calcium in the smokeless tobacco and reduce an amount of free iron in the smokeless tobacco since iron and calcium are important for peroxidase activity and arrive to the claimed ranges.
Reznick discloses adding at least one first flavorant to the smokeless tobacco [0117].
Reznick does not expressly discloses adding the at least one first flavorant occurs after the adding at least one first chelator. Northway discloses a method of treating tobacco wherein the chelator is added to the tobacco material and then the tobacco can be further treated by the addition of flavorants (col. 8 line 63 to col. 9, line 40). Since Northway discloses the claimed sequence of adding flavorants after adding chelators and choosing from a finite number of identified predictable solutions (adding the flavorants together with chelators or adding the flavorants after adding the chelators) with a reasonable expectation to success; it would have been obvious to one of ordinary skill in the art to select the sequence of treating tobacco with chelator and then adding flavorants to the tobacco in the method of Reznick as taught by Northway.
Regarding claim 3, Reznick discloses the at least one first chelator includes deferoxamine [0001].
Regarding claim 5, Reznick discloses the adding the at least one first chelator in an amount effective to suppress reactive oxygen species (ROS) generation caused by free iron and free calcium in the smokeless tobacco [0006].
Regarding claim 6, Reznick discloses the adding adds the at least one first chelator in an amount effective to reduce redox activity of free iron in the smokeless tobacco, and reduce calcium-induced activity of degradative enzymes in the smokeless tobacco [0113].
Regarding claim 7, Reznick discloses adding at least one first antioxidant to the smokeless tobacco, the at least one first antioxidant being different than the at least one first chelator [0034].
Regarding claim 8, Reznick discloses the at least one first antioxidant includes L-ascorbic acid, or a chemical analog, or both the L-ascorbic acid and the chemical analog, the chemical analog being a water-soluble analog of vitamin E [0034], and the at least one first chelator includes deferoxamine [0001].
Regarding claim 9, Since Reznick discloses vitamin E [0114], it would have been obvious to one of ordinary skill in the art at the time the invention was made to use the chemical analog of vitamin E corresponding to the claimed the chemical analog is 6-hydroxy-2,5,7,8- tetramethylchroman-2-carboxylic acid.
Regarding claim 10, Reznick discloses the at least one first chelator includes EDTA, EGTA, sodium tripolyphosphate, deferoxamine, and chlorogenic acid, and the at least one first antioxidant includes tocopherols, tocotrienols, beta- carotene, alpha tocopheryl succinate, alpha tocopheryl acetate, tocopheryl polyethylene glycol succinate, ascorbyl palmitate, BHA, BHT, TBHQ, and ubiquinol [0001].
Regarding claim 11, Reznick discloses the at least one first antioxidant includes tocopherols, tocotrienols, beta-carotene, alpha tocopheryl succinate, alpha tocopheryl acetate, tocopheryl polyethylene glycol succinate, ascorbyl palmitate, BHA, BHT, TBHQ, and ubiquinol [0034].
Regarding claim 12, Reznick discloses the at least one first antioxidant includes at least one of a lipid-soluble antioxidant and a water-soluble antioxidant [0034].
Regarding claim 15, Reznick discloses the adding at least one first flavorant occurs after the adding at least one first chelator and the adding at least one first antioxidant [0118].
Regarding claim 21, Reznick discloses adding at least one first antioxidant to the smokeless tobacco, the at least one first antioxidant being different than the at least one first chelator [0034].
Regarding claim 27, the combination of Reznick and Northway suggests that adding the at least one first chelator includes mechanically mixing the at least one first chelator with the tobacco material (for reducing free iron/free calcium from tobacco material) and adding the flavorants after the chelating step (Northway, col. 8 line 63 to col. 9, line 40).
Regarding claim 28, the combination of Reznick and Northway suggests that adding the at least one first chelator includes intimately co-mingling the at least one first chelator with the tobacco material (for reducing free iron/free calcium from tobacco material) and adding the flavorants after the chelating step (Northway, col. 8 line 63 to col. 9, line 40).
Claim 4 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Reznick et al. (WO 2008090552) (U.S Pub. No. 20100108086 for citation) in view of Northway et al. (U.S Patent No. 5810020) and further in view of Higuchi (U.S Pub. No. 20090068167). Reznick discloses a preferred metal chelator is deferoxamine but does not expressly discloses EDTA as a metal chelator. Higuchi discloses metal chelators are deferoxamine, EDTA, etc. [0044]. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to use EDTA as a metal chelator as taught by Higuchi.
Claims 16, 19-20, 22-23 and 25-26 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Reznick et al. (WO 2008090552) (U.S Pub. No. 20100108086 for citation) in view of Northway et al. (U.S Patent No. 5810020) and further in view of Holton, Jr. et al. (U.S Pub. No. 20070186941).
Regarding claim 19, Reznick does not expressly disclose fermenting tobacco. Holton discloses using tobacco that has been fermented [0018] corresponding to the claimed fermenting the smokeless tobacco. Therefore it would have been obvious to one of ordinary skill in the art at the time the invention to use tobacco that has been fermented as taught by Holton.
Regarding claims 20 and 22, the combination of Holton and Reznick taken together as a whole discloses the adding at least one first chelator occurs after the fermenting.
Regarding claim 23, the combination of Holton and Reznick taken together as a whole discloses adding at least one first chelator and the adding at least first antioxidant occurs after the fermenting.
Regarding claim 25, the combination of Holton and Reznick taken together as a whole discloses the adding at least one first chelator occurs after the fermenting, and the adding at least one first flavorant occurs after the adding at least one first chelator (Reznick [0118]).
Regarding claim 26, since Holton discloses using tobacco that has been fermented [0018]; it would have been obvious to one of ordinary skill in the art at the time the invention was made to make the adding of the at least one first chelator occurs after the fermenting of the smokeless tobacco.
Regarding claim 16, Holton discloses flavoring ingredient can be within water or an alcohol [0054]. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to form an alcohol solution, the alcohol solution including the at least one first flavorant and the at least one first antioxidant, the at least one first antioxidant being at least one lipid-soluble antioxidant (Reznick [0034], and adding the alcohol solution to the smokeless tobacco.
Response to Arguments
Applicant's arguments filed 1/2/2026 have been fully considered but are moot in view of the new ground of rejection.
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 PHU H NGUYEN whose telephone number is (571)272-5931. The examiner can normally be reached M-F 9-5.
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/PHU H NGUYEN/Examiner, Art Unit 1747
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