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 § 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.
Claim(s) 1, 3-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over MAY (US 2007/0283974) in view of BRANNBERG et al. (WO 2007/126361) and BUCHMANN et al. (US 3,820,548).
May teaches a method of manufacturing a non-tobacco smokeless product (para. 0003). May teaches applying an extraction process to one or more tobacco-alternative plant materials to produce a flavor-neutral base (para. 0034); or applying a heat treatment to the one or more tobacco-alternative plant materials (para. 0046). May teaches the heat treatment comprises a steam treatment process (para. 0046).
Brannberg teaches a method of making a moist snuff non-tobacco composition. Brannberg teaches that steam treating a non-tobacco composition results in a pasteurized product (page 8 lines 1-5) therefore it would have been obvious to one of ordinary skill in the art that the non-tobacco smokeless product of May would have been pasteurized after the steaming process, wherein pasteurization is considered equivalent to sterilization.
Buchmann teaches that steam distillation and solvent extraction are both methods of removing poisonous and other detrimental components of botanicals (col. 4 lines 20-24). It would have been obvious to one of ordinary skill in the art that performing a solvent extraction followed by a steam distillation would ensure that all toxic substances are removed from the botanicals and would improve the quality of the non-tobacco smokeless product given Buchmann’s teaching that steam distillation and solvent extraction are both methods of removing poisonous and other detrimental components of botanicals (col. 4 lines 20-24).
Regarding claim 3, May teaches subjecting the one or more non- tobacco plant materials to a drying process (para. 0046).
Regarding claim 4, May teaches adding nicotine to the one or more tobacco-alternative plant materials (para. 0044).
Regarding claim 5, May teaches adding a humectant to the one or more tobacco-alternative plant materials (para. 0013).
Claim(s) 6, 8-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over MAY (US 2007/0283974) in view of BRANNBERG et al. (WO 2007/126361) and BUCHMANN et al. (US 3,820,548)as applied to claim 1 above, and further in view of CARROLL et al. (US 2014/0261472).
May as modified by Brannberg and Buchmann teaches a method of manufacturing a non-tobacco smokeless product. May is silent to adding a plasticizer and the oven volatiles content.
Regarding claim 6, May teaches adding sorbitol (para. 0043) and Carroll teaches that sorbitol is a plasticizer (para. 0073).
Regarding claims 8-10, Carroll teaches that the smokeless product has an oven volatiles content of 4 to 61 percent (para. 0025), which overlaps with the claimed ranges of at least 60%, at least 10%, and 50% to 60%. It would have been obvious to one of ordinary skill in the art to modify the method of May to try the oven volatiles content suggested by Carroll because Carroll teaches that moist smokeless products typically have an oven volatiles content of between about 40% and about 60% (para. 0061).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over MAY (US 2007/0283974) in view of BRANNBERG et al. (WO 2007/126361) and BUCHMANN et al. (US 3,820,548) as applied to claim 1 above, and further in view of MOLDOVEANU et al. (US 2015/0068545).
May as modified by Brannberg and Buchmann teaches a method of manufacturing a non-tobacco smokeless product. May is silent to adjusting the pH of the product.
Moldoveanu teaches a method of making a smokeless tobacco product incorporating a botanical material. Moldoveanu teaches adjusting a pH of the material (para. 0097). Moldoveanu teaches that the product typically has a pH range of about 4.5 to about 9 (para. 0102) which incorporates the claimed range of 5.0 and 8.5. It would have been obvious to one of ordinary skill in the art to modify the method of May with the pH adjusting step of Moldoveanu because Moldoveanu teaches that adjusting the pH of botanical material in a smokeless product is typical (para. 0093).
Claim(s) 11, 13, 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over MAY (US 2007/0283974) in view of BRANNBERG et al. (WO 2007/126361) and BUCHMANN et al. (US 3,820,548) and MOLDOVEANU et al. (US 2015/0068545).
May teaches a method of manufacturing a non-tobacco smokeless product comprising applying a curing process to one or more tobacco-alternative plant materials to form a base material (para. 0036); and applying additional treatments to the one or more tobacco-alternative plant materials (para. 0046). May teaches the heat treatment comprises a steam treatment process (para. 0046).
Brannberg teaches a method of making a moist snuff non-tobacco composition. Brannberg teaches that steam treating a non-tobacco composition results in a pasteurized product (page 8 lines 1-5) therefore it would have been obvious to one of ordinary skill in the art that the non-tobacco smokeless product of May would have been pasteurized after the steaming process, wherein pasteurization is considered equivalent to sterilization.
Buchmann teaches that steam distillation and solvent extraction are both methods of removing poisonous and other detrimental components of botanicals (col. 4 lines 20-24). It would have been obvious to one of ordinary skill in the art that performing a solvent extraction followed by a steam distillation would ensure that all toxic substances are removed from the botanicals and would improve the quality of the non-tobacco smokeless product given Buchmann’s teaching that steam distillation and solvent extraction are both methods of removing poisonous and other detrimental components of botanicals (col. 4 lines 20-24).
Buchmann teaches a method of making a tobacco substitute material. Buchmann teaches that an optimal pH is achieved by steam processes (col. 4 lines 20-23). Buchmann is silent to the optimal pH.
Moldoveanu teaches a method of making a smokeless tobacco product incorporating a botanical material. Moldoveanu teaches adjusting a pH of the material (para. 0097). Moldoveanu teaches that the product typically has a pH range of about 4.5 to about 9 (para. 0102) which overlaps with a typical alkaline range of 7.1-14. It would have been obvious to one of ordinary skill in the art to modify the method of May to modify the pH level to a pH range of about 4.5 to about 9 because Moldoveanu teaches this is a typical pH range for a smokeless product (para. 0102).
Regarding claim 13, May teaches adding nicotine to the one or more tobacco-alternative plant materials (para. 0044).
Regarding claim 14, May teaches adding a humectant to the one or more tobacco-alternative plant materials (para. 0013).
Claim(s) 15 and 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over MAY (US 2007/0283974) in view of BRANNBERG et al. (WO 2007/126361) and BUCHMANN et al. (US 3,820,548) and MOLDOVEANU et al. (US 2015/0068545) as applied to claim 11 above, and further in view of CARROLL et al. (US 2014/0261472).
May as modified by Brannberg, Buchmann, and Moldoveanu teaches a method of making a smokeless non-tobacco product comprising green tea leaves.
Regarding claim 15, May teaches adding sorbitol (para. 0043) and Carroll teaches that sorbitol is a plasticizer (para. 0073).
Regarding claims 17-19, Carroll teaches that the smokeless product has an oven volatiles content of 4 to 61 percent (para. 0025), which overlaps with the claimed ranges of at least 60%, at least 10%, and 50% to 60%. It would have been obvious to one of ordinary skill in the art to modify the method of May to try the oven volatiles content suggested by Carroll because Carroll teaches that moist smokeless products typically have an oven volatiles content of between about 40% and about 60% (para. 0061).
Allowable Subject Matter
Claim 20 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The prior art documents typically teach adding caffeine to smokeless non-tobacco products and do not teach or suggest the extraction process reduces an amount of caffeine in the one or more tobacco-alternative plant materials by more than 50%.
Response to Arguments
Applicant's arguments filed January 14, 2026 have been fully considered but they are not persuasive.
Applicant argues on page 6 that Buchman teaches steam distillation or solvent extraction, however, as discussed above, given that Buchmann teaches that steam distillation and solvent extraction are both methods of removing poisonous and other detrimental components of botanicals (col. 4 lines 20-24); it would have been obvious to one of ordinary skill in the art that performing a solvent extraction followed by a steam distillation (i.e. doubling up on the methods of toxic components of the botanicals) would ensure that all toxic substances are removed from the botanicals and would improve the quality of the non-tobacco smokeless product given Buchmann’s teaching that steam distillation and solvent extraction are both methods of removing poisonous and other detrimental components of botanicals (col. 4 lines 20-24).
Buchman teaches that botanical material contains toxic, poisonous or detrimental organic materials (col. 3 lines 20-23) and May teaches using botanical material (para. 0011); therefore, one of ordinary skill in the art would have been motivated to remove toxic, poisonous or detrimental organic materials from the botanical material of May.
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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/CYNTHIA SZEWCZYK/Primary Examiner, Art Unit 1741
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