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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1–7 and 11–20 in the reply filed on 05/27/2026 is acknowledged. The traversal is on the ground(s) that there are overlapping or related technical features among the groups of claims and that there would be no undue burden to examine all three groups of claims. This is not found persuasive because the elected Group I claims are drawn to a flavor molded body, Group II claims 8–9 are drawn to a non-combustion heating-type flavor inhaler, and Group III claim 10 is drawn to a method of producing a flavor molded body. These groups are directed to distinct statutory/electable inventions requiring different searches and examination of different claim features, including article structure, device structure including a power supply/heater, and method steps of mixing, compression-molding, and removing ethanol.
The requirement is still deemed proper and is therefore made FINAL.
Claims 8-10 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 05/27/2026.
Claim Rejections - 35 USC § 102/103
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 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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.
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.
Claim(s) 1–3, 6, 11, 17, and 18 are rejected under 35 U.S.C. 102((a)(1)) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over White-1 et al. (US 2019/0269170 A1) evidenced by USP <1217> Tablet Breaking Force.
Regarding claim 1, White-1 teaches a flavor molded body for non-combustion heating-type flavor inhalers (dry pellet substrate for use with a vapor delivery device, such as a heat-not-burn type vapor delivery device) (¶ [0082]; ¶ [0085]).
Applicant’s specification describes the flavor molded body as having a predetermined shape/size as a molded body (Applicant’s Spec., ¶ [0020]) and further describes that the flavor molded body may have various shapes, including a spherical shape, porous shape, and other shapes (Applicant’s Spec., ¶ [0031]). White-1’s dry pellet substrate is a discrete shaped substrate/body and therefore reads on the claimed flavor molded body.
The phrase “for non-combustion heating-type flavor inhalers” is intended-use language for the claimed article and does not impose a structural limitation requiring the inhaler, heater, or other device structure to be present in the claimed flavor molded body.
White-1 teaches the flavor molded body comprising:
a tobacco powder material (tobacco powder blend (F) comprising flue cured, burley and/or oriental tobacco milled to less than about 20 microns, and preferably less than about 10 microns) (¶ [0081]);
an adsorbent having a volatile flavoring agent component adsorbed thereon (Jacobi CX coconut shell based granular activated carbon pellets having a tobacco extract mixture applied thereto in Example 3, wherein White-1 teaches liquid solution is adsorbed onto exposed surfaces of the base material) (¶ [0026]; ¶ [0085]);
an aerosol source (70VG/30PG aerosol former) (¶ [0085]); and
wherein the flavor molded body has a compression breaking strength of 10 N or more as determined by using a stake plunger in a tablet hardness meter (dry pellet substrate comprising granular activated carbon pellets, tobacco extract mixture, 70VG/30PG aerosol former, and tobacco powder blend) (¶ [0085]).
White-1 does not expressly state a compression breaking strength of 10 N or more. However, White-1 teaches a dry pellet substrate comprising granular activated carbon pellets, a tobacco extract mixture, 70VG/30PG aerosol former, and tobacco powder blend (¶ [0085]). White-1 further teaches that, after the tobacco powder blend is added, the pellets are dried until the surface of the pellets is essentially dry (¶ [0085]).
As evidence that the claimed compression breaking strength corresponds to a recognized mechanical property of a finished solid article, USP <1217> Tablet Breaking Force states that tablet breaking force is a measure of mechanical integrity and is the force required to cause a tablet to fail/break in a specific plane. Accordingly, the claimed compression breaking strength is treated as a mechanical property of the finished molded body rather than a separate compositional component.
Because White-1 teaches the same or substantially the same finished dry flavor pellet substrate as claimed, and claim 1 does not require any particular tablet shape, density, compression pressure, or manufacturing condition to obtain the recited strength, the dry pellet substrate of White-1 is considered to inherently possess the claimed compression breaking strength of 10 N or more absent evidence to the contrary.
Alternatively, if not clearly envisaged that the property is inherent, it is the examiner’s position that it would be reasonably expected because White-1 teaches the same or substantially the same finished dry flavor pellet substrate as the claimed flavor molded body. In particular, White-1 teaches granular activated carbon pellets having a tobacco extract mixture applied thereto, 70VG/30PG aerosol former, and tobacco powder blend, wherein the pellets are dried until the surfaces of the pellets are essentially dry (¶ [0085]).
USP <1217> Tablet Breaking Force evidences that breaking force is a recognized measure of mechanical integrity for a finished solid article. Thus, one of ordinary skill in the art would have reasonably expected White-1’s finished dry pellet substrate to have sufficient mechanical integrity to resist breakage during ordinary manufacturing, handling, storage, and use, including a compression breaking strength of 10 N or more, absent evidence to the contrary.
Regarding claim 2, White-1 teaches wherein the adsorbent is activated carbon (Jacobi CX coconut shell based granular activated carbon pellets) (¶ [0085]).
Regarding claim 3, White-1 teaches wherein the adsorbent is composed of a plurality of particles, and the plurality of particles includes two or more particles in the flavor molded body (granular activated carbon pellets in the dry pellet substrate) (¶ [0085]).
Regarding claim 6, White-1 teaches wherein the aerosol source is at least one selected from the group consisting of glycerine and propylene glycol (70VG/30PG aerosol former, i.e., vegetable glycerin and propylene glycol) (¶ [0085]).
Regarding claim 11, White-1 teaches the flavor molded body according to claim 2, wherein the adsorbent is composed of a plurality of particles, and the plurality of particles includes two or more particles in the flavor molded body (granular activated carbon pellets in the dry pellet substrate) (¶ [0085]).
Regarding claim 17, White-1 teaches the flavor molded body according to claim 2, wherein the aerosol source is at least one selected from the group consisting of glycerine and propylene glycol (70VG/30PG aerosol former, i.e., vegetable glycerin and propylene glycol) (¶ [0085]).
Regarding claim 18, White-1 teaches the flavor molded body according to claim 3, wherein the aerosol source is at least one selected from the group consisting of glycerine and propylene glycol (70VG/30PG aerosol former, i.e., vegetable glycerin and propylene glycol) (¶ [0085]).
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.
Claims 5, 14, 15, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over White-1 et al. (US 2019/0269170 A1) evidenced by USP <1217> Tablet Breaking Force.
Regarding claims 5, 14, 15, and 20, White-1 teaches the flavor molded body according to claims 1, 2, and 3, as set forth above, including a dry pellet substrate comprising granular activated carbon pellets, a tobacco extract mixture, 70VG/30PG aerosol former, and tobacco powder blend (¶ [0085]). White-1 further teaches wherein the aerosol source is at least one selected from the group consisting of glycerine and propylene glycol (70VG/30PG aerosol former, i.e., vegetable glycerin and propylene glycol) (¶ [0085]). White-1’s Example 3 embodiment teaches the pellet substrate using a tobacco extract mixture as the flavoring component, but does not expressly teach that the volatile flavoring agent component is at least one selected from the group consisting of the listed flavoring agents of claims 5, 14, 15, and 20 (¶ [0085]).
White-1 teaches that the liquid solution applied to the pellet substrate may include flavoring (¶ [0026]). White-1 further teaches menthol flavoring as a specific flavoring used in activated-carbon pellet substrate embodiments with 70VG/30PG aerosol former (¶ [0083]; ¶ [0084]; Table 2). Menthol is one of the listed volatile flavoring agent components of claims 5, 14, 15, and 20.
Because White-1 teaches menthol as a known flavoring for the same activated-carbon pellet substrate platform, one of ordinary skill in the art would have recognized menthol as a suitable flavoring option for the flavor component of White-1’s Example 3 pellet substrate. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use menthol flavoring in White-1’s Example 3 activated-carbon pellet substrate in order to provide a menthol-flavored vapor during use.
Claims 4, 12, 13, 16, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over White-1 et al. (US 2019/0269170 A1) evidenced by USP <1217> Tablet Breaking Force in view of Hufnagel et al. (US 2017/0119041 A1).
Regarding claims 4, 12, 13, 16, and 19, White-1 teaches the flavor molded body according to claims 1, 2, and 3, as set forth above, including a dry pellet substrate comprising granular activated carbon pellets, a tobacco extract mixture, 70VG/30PG aerosol former, and tobacco powder blend (¶ [0085]). White-1 further teaches wherein the aerosol source is at least one selected from the group consisting of glycerine and propylene glycol (70VG/30PG aerosol former, i.e., vegetable glycerin and propylene glycol) (¶ [0085]). White-1 does not expressly teach wherein the adsorbent is not exposed on a surface of the flavor molded body.
White-1 and Hufnagel are in the same field of endeavor because both are directed to aerosol/vapor-generating substrates for non-combustion or heat-not-burn smoking/vapor delivery articles (White-1, ¶ [0082]; Hufnagel, ¶ [0042]).
Hufnagel teaches a flavor delivery system in which a flavor material is entrained in a zeolite core and the core is surrounded by wax to form an encapsulated core (¶ [0015]). Hufnagel teaches that volatile flavorants in smoking articles can be difficult to retain during manufacture and storage and may migrate to other parts of the smoking article (¶ [0016]). Hufnagel further teaches that, upon heating, the wax melts and the flavor material is released from the zeolite (¶ [0018]; ¶ [0024]).
White-1 teaches a dry pellet substrate in which a tobacco extract mixture is applied to porous activated-carbon pellets, thereby using the activated carbon as a flavor-loaded adsorbent in a heated vapor-delivery substrate (¶ [0085]). Because White-1’s activated carbon and Hufnagel’s zeolite perform the same role of carrying flavor material in a heated aerosol/tobacco substrate, Hufnagel’s wax-encapsulated flavor delivery system would have been recognized as a predictable structural arrangement for White-1’s flavor-loaded activated-carbon adsorbent.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify White-1’s flavor-loaded activated-carbon adsorbent to use Hufnagel’s wax-encapsulated flavor delivery system arrangement in order to retain volatile flavor material during manufacture and storage and reduce migration of volatile flavor material to other portions of the smoking article. The wax surrounding the flavor-loaded adsorbent physically covers the adsorbent, such that the adsorbent is not exposed on a surface of the flavor molded body.
Regarding claim 16, White-1’s Example 3 embodiment does not expressly teach that the volatile flavoring agent component is at least one selected from the group consisting of the listed flavoring agents of claim 16 (¶ [0085]). White-1 teaches menthol flavoring as a specific flavoring used in activated-carbon pellet substrate embodiments with 70VG/30PG aerosol former (¶ [0083]; ¶ [0084]; Table 2). Menthol is one of the listed volatile flavoring agent components of claim 16. Because White-1 teaches menthol as a known flavoring for the same activated-carbon pellet substrate platform, one of ordinary skill in the art would have recognized menthol as a suitable flavoring option for the flavor component of White-1’s Example 3 pellet substrate.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over White-1 et al. (US 2019/0269170 A1) in view of White-2 (US 6,164,287).
Regarding claim 7, White-1 teaches the flavor molded body according to claim 1, as set forth above, including a dry pellet substrate comprising granular activated carbon pellets, a tobacco extract mixture, 70VG/30PG aerosol former, and tobacco powder blend for use in a heat-not-burn vapor delivery device (¶ [0082]; ¶ [0085]). White-1 does not expressly teach wherein the flavor molded body has a tablet shape.
White-1 and White-2 are in the same field of endeavor because both are directed to heated tobacco substrates/articles for generating inhalable tobacco flavor, smoke, or aerosol from heated tobacco material (White-1, ¶ [0082]; White-2, col. 2, ll. 1–20).
White-2 teaches that compressed tobacco powder is preferably shaped to ensure good contact with a conductor and is preferably in the form of a tablet, disk, or wafer (White-2, col. 3, ll. 50–59). White-2 further teaches that the preferred compressed tablet has a flat surface abutting a heated conductor, where the surface exposed to heat is large compared to the tablet thickness, which is important for heat conductance through the tobacco tablet to establish and maintain uniform temperature (White-2, col. 3, ll. 40–49; White-2, col. 4, ll. 1–9).
White-1’s dry pellet substrate is likewise a heated particulate flavor substrate used to vaporize and deliver aerosol/flavor material in a heat-not-burn vapor delivery device (¶ [0082]; ¶ [0085]). Thus, one of ordinary skill in the art would have recognized White-2’s compressed tablet form as a suitable known form factor for White-1’s heated flavor substrate, while maintaining White-1’s flavor-delivery composition.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the form factor of White-1’s dry pellet substrate to a tablet shape, as taught by White-2, in order to provide a heated flavor substrate having a flat heated surface and reduced thickness suitable for heat conductance and maintaining uniform temperature during heating.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER KESSIE whose telephone number is (571)272-7739. The examiner can normally be reached Monday - Thursday 7:00am - 5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael H Wilson can be reached at (571) 270-3882. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER A KESSIE/Examiner, Art Unit 1747
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
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