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 Objections
Claim(s) 10 is/are objected to because of the following informalities: “3.5 mg/cig.” should be amended to read “3.5 mg/cig”. Appropriate correction is required.
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.
Claim(s) 1-2, 4-5, 11, and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gurley (US 2,656,841) in view of Hofmann (CN 103402381A).
Claim 1: Gurley teaches a smoking article (c1 ¶1; col3 ¶11-12; c6 ¶5 to c7 ¶2: for example – cigarette 40 or cigar 50) comprising
●a medium-portion wherein the medium-portion comprises
●cigar leaf tobacco (i.e. leaf of tobacco) (c6 ¶5 to c7 ¶2: for example – “shredded
cigarette tobacco 44” of cigarette 40 or “tobacco 56” of cigar 50 – with tobacco from a leaf) and
●cigar expanded cut tobacco (c6 ¶5 to c7 ¶2: for example – “shredded expanded
reconstituted tobacco filler material 46” or “expanded tobacco sheet 54”) where material 46 and sheet 54 are formed by a cutting-step in the apparatus shown in Figure 1 using rotary knife 23 (c3 ¶7; c6 ¶4).
Cigar 50 comprises wrapper 52 (c7 ¶2).
Claim 1: Gurley does not teach that the smoking article comprises a filter.
Hofmann teaches making expanded tobacco stems for cigarettes that have filters (Abstract; ¶45).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the invention, to have provided in Gurley that the smoking article comprises a filter in that cigarette filters are conventional and well-known in the art, as demonstrated by Hofmann, where filters function to remove harmful components from cigarette smoke.
Claim 2: Gurley teaches the smoking article of claim 1, wherein the cigar expanded cut tobacco has a moisture content of less than 15% (c5 ¶s3-4) which overlaps the claimed range of 12% to 15%.
Claim 4: the limitation of claim 4 is not required given the use of “or less” meaning not present.
Claim 5: Gurley teaches the smoking article of claim 1 wherein the content of effective cut tobacco (i.e. tobacco which has been cut) is 100% since all of material 46 and sheet 54 has been cut thereacross using rotary knife 23 (c3 ¶7; c6 ¶4); and, the other limitation of claim 5 is not required given the use of “or less” meaning not present.
Claim 11: Gurley teaches the smoking article of claim 1, wherein the smoking article is, for example, cigarette 40 or cigar 50 (c6 ¶5 to c7 ¶2).
Claim 13: Gurley teaches a method of manufacturing a smoking article (c1 ¶1; col3 ¶11-12; c6 ¶5 to c7 ¶2: for example – cigarette 40 or cigar 50) the method comprising manufacturing cigar expanded cut tobacco by expanding cigar leaf tobacco (“cigar leaf tobacco” is a leaf of tobacco) (c4 ¶1 Lns1-12) using the apparatus shown in Figure 1 which expands the cigar leaf tobacco (the cigar leaf tobacco being in sheet-form) (c4 ¶3: for example – web 4), using heat (c4 ¶5), where the sheet-form is then cut using rotary knife 23 (c3 ¶7; c6 ¶4). Thereafter, the cigar expanded cut tobacco and the cigar leaf tobacco are blended and wrapped in cigar wrapper 52 (c6 ¶5 to c7 ¶1) (i.e. blend of cigar leaf tobacco (c6 ¶5 to c7 ¶2: for example – “shredded cigarette tobacco 44” of cigarette 40 or “tobacco 56” of cigar 50 – with tobacco being of a leaf) and cigar expanded cut tobacco (c6 ¶5 to c7 ¶2: for example – “shredded expanded reconstituted tobacco filler material 46” or “expanded tobacco sheet 54”)). An expansion temperature in the manufacturing step is 121-232oC (250-450oF) (c5 ¶5) which overlaps the claimed range of 180-350ºC.
Claim(s) 3 and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gurley (US 2,656,841) in view of Hofmann (CN 103402381A), as applied to claim(s) 1-2, 4-5, 11, and 13 above, and further in view of Lawson (US 4,836,224).
Claim 3: Gurley teaches the smoking article of claim 1 – but does not teach a nicotine content of 1.5-2.5% in the cigar expanded cut tobacco.
Lawson teaches a tobacco cigarette having a nicotine content of above about 2% (Abstract; c2 ¶3), which overlaps the claimed range of 1.5-2.5%, where this values lends itself to a more palatable experience (c1 ¶6).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the invention, to have provided in Gurley a nicotine content of above about 2% in the cigar expanded cut tobacco in that Lawson teaches that this nicotine content lends itself to a more palatable experience.
Claim 10: Gurley teaches the smoking article of claim 1 – but does not teach a total content of tar and nicotine in the smoke producing component of the smoking article is 3.5 mg/cig to 7.5 mg/cig.
Lawson also teaches a total content of tar and nicotine is 5.66 or 5.59 or 5.71 mg/cigarette (TABLE 1: Samples 1,2, and 3) which value(s) contribute towards a smooth smoking experience (c13 ¶s1-2). Note that 5.66 or 5.59 or 5.71 mg/cigarette all fall within the claimed range of 3.5-7.5 mg/cig.
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the invention, to have provided in Gurley a total content of tar and nicotine in the smoke producing component(s) of the smoking article is 5.66 or 5.59 or 5.71 mg/cigarette in that Lawson teaches that these values contribute towards a smooth smoking experience.
Claim(s) 6-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gurley (US 2,656,841) in view of Hofmann (CN 103402381A), as applied to claim(s) 1-2, 4-5, 11, and 13 above, and further in view of Davis (US 4,899,765).
Claims 6-7: Gurley teaches the smoking article of claim 1 – but does not teach that (a) a content of the cigar expanded cut tobacco is 40-60 weight percent with respect to a total weight of the cigar leaf tobacco and the cigar expanded cut tobacco (claim 6) and (b) a weight ratio of the cigar leaf tobacco to the cigar expanded cut tobacco is 4:6 to 6:4 (claim 7).
Davis teaches a cigarette rod comprising (1) tobacco and (2) expanded tobacco with the expanded tobacco being present in an weight percent of at least 40% (Abstract; c2 ¶4; c7 ¶s1-29) wherein this weight percent contributes towards the production of cigarette rods having a high consistency along the length thereof (c1 ¶s4-5; c2 ¶ 1 ¶3). Note that the weight percent of at least 40 overlaps the claimed range of 40-60 weight percent.
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the invention, to have provided in Gurley that a content of the cigar expanded cut tobacco is at least 40 weight percent with respect to a total weight of the cigar leaf tobacco and the cigar expanded cut tobacco in that Davis teach that this value contributes towards the production of cigarette rods having a high consistency along the length thereof. With a weight of the cigar leaf tobacco being – for example 40 weight percent -- and the weight of the cigar expanded cut tobacco being – for example 60 weight percent – a ratio of the cigar leaf tobacco to the cigar expanded cut tobacco is 2:3 which falls withing the claimed range of 4:6-6:4.
Claim(s) 8-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gurley (US 2,656,841) in view of Hofmann (CN 103402381A), as applied to claim(s) 1-2, 4-5, 11, and 13 above, and further in view of Bai (WO 2021017377 A1).
Claim 8: Gurley teaches the smoking article of claim 1 – but does not teach that the cigar leaf tobacco includes toasted cigar leaves.
However, it is conventional and well-known in the art to provided toasted cigar leaf tobacco as part of the tobacco material for a cigarette, as demonstrated by Bai. Bail teaches a tobacco material for a cigarette (Abstract) which includes toasted cigar leaves (made at a temperature of 60-100oC) which contributes to an improved smoking quality of the cigarette (p4 ¶s5-6; Example I beginning at p4).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the invention, to have provided in Gurley that the cigar leaf tobacco includes toasted cigar leaves of tobacco as is conventional and well-known in the art, as demonstrated by Bai – Bai teaching that such contributes to an improved smoking quality of the cigarette.
With respect to the claimed weight percent of toasted leaves in the cigar leaf tobacco, this value to which one skilled in the art would consider providing is a function of, among other variables, the desired effect such has on the smoking quality of the smoking article, the effect of other materials present in the medium-portion, and the constants and variables of manufacturing. Accordingly, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the invention, to have optimized the weight percent of toasted leaves in the cigar leaf tobacco to which one skilled in the art would consider based on known variables, such as those listed for example; and thus, the claimed value cannot be considered critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum and workable ranges by routine experimentation,” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 195). “It is a well settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same this as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results that prior inventions.” In re Williams, 36 F.2d 436, 438 (CCPA 1929). See MPEP 2144.05 II.A.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gurley (US 2,656,841) in view of Hofmann (CN 103402381A), as applied to claim(s) 1-2, 4-5, 11, and 13 above, and further in view of PCB Personal Cigar Bands.
Claim 12: Gurley teaches the smoking article of claim 1 where cigar 50 comprises wrapper 52 (c7 ¶2) – but does not teach that the wrapper includes print.
PCB teaches a perfect finishing touch for a cigar which includes a custom printed wrapper crafted for ones’ most memorable moments (p1).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the invention, to have provided in Gurley that the wrapper includes print in that printed wrappers are conventional and well-known in the art, as demonstrated by PCB, where PCB teaches that custom printed cigar wrappers are a perfect finishing touch for ones’ most memorable moments.
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gurley (US 2,656,841) in view of Hofmann (CN 103402381A), as applied to claim(s) 1-2, 4-5, 11, and 13 above, and further in view of Bai (WO 2021017377 A1) and Millhiser (US 714,728).
Claim 14: Gurley teaches the method of claim 13 which includes providing the cigar leaf tobacco – but does not teach (a) toasting the cigar leaf tobacco at 90-130oC, (b) adding one of a sugar or a moisturizing agent or a flavoring agent to the cigar leaf tobacco, and (c) using unifoliate leaves as the cigar tobacco leaf.
However, for (a) above, it is conventional and well-known in the art to toast cigar leaf tobacco as part of the tobacco material for a cigarette, as demonstrated by Bai. Bail teaches a tobacco material for a cigarette (Abstract) which includes toasting cigar leaves, at 60-100oC, which contributes to an improved smoking quality of the cigarette (p4 ¶s5-6; Example I beginning at p4). Note that 60-100oC overlaps the claimed range of 90-130oC.
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the invention, to have provided in Gurley toasting the cigar leaf tobacco at 60-100oC in that it is conventional and well-known in the art to toast cigar leaf tobacco as part of the tobacco material for a cigarette, as demonstrated by Bai – Bai teaching that such contributes to an improved smoking quality of the cigarette.
For (b) above, Bai also teaches adding a flavoring agent to the tobacco material (p2 ¶7 to p3 ¶2).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the invention, to have provided in Gurley adding a flavoring agent to the cigar leaf tobacco in that Bai demonstrates such to be conventional and well-known in the art where adding flavor will necessarily improve the smoking experience.
For (c) above, Millhiser teaching making cigars and cigarettes using single leaf tobacco (i.e. unifoliate leaves) to make the tobacco material for the cigars and cigarettes (p1 c1 ¶s1-3).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the invention, to have provided in Gurley using unifoliate leaves as the cigar tobacco leaf in that this is conventional and well-known in the art as demonstrated by Millhiser – where it is obvious to replace one form of a tobacco leaf (that of Gurley – not specifically disclosed) with another art recognized form of a tobacco leaf (that of Millhiser – single leaf) for the benefits provided therein.
Other Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
●Wochnowski teaches a smoking article having a moisturizing agent.
●Bolt teaches a smoking material having sugar added.
●Marshall teaches tobacco comprising a fine powder.
●Saem teaches a tobacco sheet with expanded tobacco stems.
●Bin teaches tobacco for a cigarette comprising tobacco and expanded tobacco.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LINDA GRAY whose telephone number is (571) 272-5778. The examiner can normally be reached Monday - Friday, 9 AM to 5:30 PM.
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/LINDA L GRAY/Primary Examiner, Art Unit 1745
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