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
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.
Claims 1-5, 7-8, and 14-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ferrari et al. (WO 2014/125340).
Regarding claims 1-5, Ferrari teaches a smoke liquid for atomizers that are water-based (a water-based atomizing agent) (Ferrari abstract). The water-based atomizing agent, comprising: a mixed matrix of a water matrix and an alcohol matrix; wherein the water matrix comprises water and a sugar alcohol such as sorbitol or mannitol, and the alcohol matrix is propylene glycol and/or glycerol; and an active agent such as ethanol (Ferrari abstract; pg. 3, para 3-4; pg. 4, para 1-4; pgs. 10-12). The active agent aids in maintaining consistency and viscosity (improving surface activity) (Ferrari pg. 10, para 3).
Regarding claims 7 and 8, Ferrari teaches the water-based atomizing agent required by claims 1 and 5. Ferrari further teaches the active agent, ethanol, may be present from 0.3 to 0.5%, which is within the claimed range of 0.03 to 20% and the narrower range of 0.2 to 5% (Ferrari pg. 10, para 3).
Regarding claims 14 and 15, Ferrari teaches the water-based atomizing agent required by claim 1. Ferrari further teaches the active agent is ethanol as explained in the rejection of claims 1-5 above. As Ferrari teaches the mixed matrix compositions and the composition of the active agent, a surface tension of the active agent would inherently be smaller than that of the mixed matrix. When the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, the prior art products necessarily possess the characteristics of the claimed product. See MPEP 2112.01.
Regarding claim 16, Ferrari teaches the water-based atomizing agent required by claim 1. Ferrari further teaches the water-based atomizing agent is for use in a liquid smoke composition and thus would be in a liquid state (Ferrari abstract).
Regarding claim 17-19, Ferrari teaches a smoke liquid for atomizers that are water-based (a water-based atomizing substance) (Ferrari abstract). The water-based atomizing substance comprises a water-based atomizing agent, comprising: a mixed matrix of a water matrix and an alcohol matrix; wherein the water matrix comprises water and a sugar alcohol such as sorbitol or mannitol, and the alcohol matrix is propylene glycol and/or glycerol; and an active agent such as ethanol; and an additive, used for personal or medical purposes, that comprises natural ingredients such as an herbal extract or a synthetic specific ingredient such as nicotine (Ferrari abstract; pg. 3, para 3-4; pg. 4, para 1-4; pg. 6, para 2 and 3; pgs. 10-12). The active agent aids in maintaining consistency and viscosity (improving surface activity) (Ferrari pg. 10, para 3).
Regarding claim 20, Ferrari teaches a container or cartridge comprising a smoke liquid for atomizers that are water-based (a water-based atomizing agent) which can be utilized to supply the atomizer or vaporizer device which may be a cape or electronic cigarette (a cartomizer comprising at least one cartomizer chamber) (Ferrari abstract). The water-based atomizing agent, comprising: a mixed matrix of a water matrix and an alcohol matrix; wherein the water matrix comprises water and a sugar alcohol such as sorbitol or mannitol, and the alcohol matrix is propylene glycol and/or glycerol; and an active agent such as ethanol (Ferrari abstract; pg. 3, para 3-4; pg. 4, para 1-4; pgs. 10-12). The active agent aids in maintaining consistency and viscosity (improving surface activity) (Ferrari pg. 10, para 3).
Claim Rejections - 35 USC § 103
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 6, 9, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Ferrari in view of Soderlund et al. (US 2004/0002520).
Regarding claim 6, Ferrari teaches the water-based atomizing agent required by claim 2. Ferrari does not explicitly teach wherein the sugar alcohol is xylitol.
Soderlund teaches a composition for a nicotine solution as a substitute for tobacco products such as cigarettes in which sugar alcohols are utilized as a penetrative enhancer to provide an improved sweet taste to the liquid product (Soderlund: abstract; para 0011 and 0015). The sugar alcohol could be sorbitol, mannitol, or xylitol (Soderlund: para 0015). Thus, xylitol is a functional equivalent to mannitol and sorbitol, the sugar alcohols used in Ferrari.
Ferrari and Soderlund are in the corresponding field of compositions that serve as substitutes for tobacco products such as cigarettes that comprise sugar alcohols. Therefore, it would be obvious to substitute xylitol for sorbitol or mannitol in Ferrari as they are known art recognized functional equivalents to enhance the sweet taste of the liquid solution as taught by Soderlund.
Regarding claim 9, Ferrari and Soderlund teaches the water-based atomizing agent required by claim 6. Ferrari further teaches the active agent, ethanol, may be present from 0.3 to 0.5%, which is within the claimed range of 0.2 to 5% (Ferrari pg. 10, para 3).
Regarding claim 13, Ferrari and Soderlund teaches the water-based atomizing agent required by claim 6. Ferrari further teaches sorbitol (a sugar alcohol) may be present from 10-50% by weight, overlaps with the claimed 30 to 40% by mass, and water may be present up to 60% by weight, overlaps with the claimed 60 to 70% by mass, thus one of ordinary skill in the art would envision an embodiment which arrives at the claimed proportions for the water matrix (Ferrari pgs. 5 and 10-12). A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Claim(s) 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Ferrari.
Regarding claims 10 and 11, Ferrari teaches the water-based atomizing agent required by claim 2. Ferrari further teaches the mixed matrix may comprise 40 to 70% of propylene glycol (40 to 70 parts of the alcohol matrix), overlaps with the claimed to 90 parts and the narrower 20 to 70 parts by weight of alcohol matrix; and 5-19% of water and 10-50% sorbitol (15 to 69 parts of water matrix), overlaps with the claimed 10 to 94 parts or the narrower 30 to 80 parts by weight of water matrix (Ferrari pgs. 10-12). A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Regarding claim 12, Ferrari teaches the water-based atomizing agent required by claim 5. Ferrari further teaches sorbitol (a sugar alcohol) may be present from 10-50% by weight, overlaps with the claimed 1 to 40% by mass, and water may be present up to 60% by weight, overlaps with the claimed 60 to 99% by mass, thus one of ordinary skill in the art would envision an embodiment which arrives at the claimed proportions for the water matrix (Ferrari pgs. 5 and 10-12). A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Conclusion
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/LAURA B FIGG/Examiner, Art Unit 1781 9/30/26
