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 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Batista (JP2017522003A) in view of Uren (US 2016/0366926).
Claim 1. Batista discloses reconstituted tobacco webs ([0001]). A reconstituted tobacco sheet or web may be formed by agglomerating particulate tobacco obtained by grinding or otherwise subdividing one or both of tobacco leaf and tobacco leaves. Alternatively or additionally, the sheet of reconstituted tobacco may include one or more of tobacco dust, tobacco fine powder and other particulate tobacco by-products formed during processing, handling and transport of tobacco ([0006]). The reconstituted tobacco material may comprise one or more endogenous binders, one or more exogenous binders, or a combination thereof to aid in the aggregation of tobacco particles. The reconstituted tobacco may comprise other additives including, but not limited to, tobacco and non-tobacco fibers, aerosol forming agents, wetting agents, plasticizers, flavoring agents, fillers, aqueous and nonaqueous solvents and combinations thereof ([0007]). Reconstituted tobacco can be cast leaf tobacco. A cast leaf is a term used in one form of reconstituted tobacco formed from a slurry comprising tobacco particles, fiber particles, aerosol former, flavor, and binder. The tobacco particles may be in the form of tobacco dust with a particle size of the order of 30 to 80 microns or 100 to 250 microns, depending on the desired sheet thickness and casting gap. The fiber particles may comprise tobacco stem material, stems or other tobacco plant materials, and other cellulosic fibers (such as wood fibers with low lignin content). Fiber particles can be chosen as required to provide sufficient tensile strength for cast leaves for low content (eg, about 2 to 15% rate). Alternatively, fibers (such as vegetable fibers) can be used with or in place of the above-mentioned fibers, including cannabis and bamboo and the like ([0009]).
Batista does not explicitly disclose that the cannabis fibers used with the tobacco fiber particles are from a cannabis flower, cannabis leaves, or cannabis stems.
Uren discloses a smokable cannabis product (Abstract) comprising a reconstituted leaf sheet ([0015]). The reconstituted leaf sheet contains cannabis debris which includes stems, small lamina, and other small particles of cannabis ([0015]).
It would have been obvious to one of ordinary skill in the art before the effective filing date that the cannabis fibers included in the reconstituted web/sheet of Batista comprise cannabis stems, small lamina, and other small particles of cannabis as taught by Uren ([0015]) because the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination (See MPEP § 2144.07).
Claim 2. Modified Batista discloses that the continuous web is dried to form a reconstituted tobacco web which may be rolled onto a bobbin or cut into sheets or cut into small pieces and used as fillers in conventional cigarettes (Batista [0002]).
Claim 3. Modified Batista does not explicitly disclose that the ratio of tobacco to cannabis is from 1 percent tobacco and 99 percent cannabis to 1 percent cannabis and 99 percent tobacco.
However, when faced with a mixture, one of ordinary skill in the art would be motivated by common sense to select a 1:1 ratio, a ratio that falls within the presently claimed amount, absent evidence of unexpected or surprising results. Case law holds that "[h]aving established that this knowledge was in the art, the examiner could then properly rely... on a conclusion of obviousness, 'from common knowledge and common sense of the person of ordinary skill in the art within any specific hint or suggestion in a particular reference.'" In re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969).
Claim 4. Modified Batista discloses that the reconstituted tobacco may comprise other additives including, but not limited to, tobacco and non-tobacco fibers, aerosol forming agents, wetting agents, plasticizers, flavoring agents, fillers, aqueous and nonaqueous solvents and combinations thereof (Batista [0007]).
Claim 5. Modified Batista discloses the reconstituted tobacco for use in a heated aerosol-generating article can have an aerosol former content of 5 to 30 weight percent on a dry weight basis (Batista [0008]). An aerosol former content of 30 weight percent would result in a filler having at most 70 weight percent reconstituted tobacco and cannabis, which falls within the claimed range of between 1 percent and 75 percent.
Claims 6, 8, and 12. Modified Batista discloses that the continuous web is dried to form a reconstituted tobacco web which may be rolled onto a bobbin or cut into sheets or cut into small pieces and used as fillers in conventional cigarettes (Batista [0002]).
Claims 7 and 10. Modified Batista discloses that the sheet comprises a quantity of THC and a quantity of CBD mixed with flavorings, preservatives, and humectants. Flavorings enhance the flavor of the reconstituted leaf sheet while the preservatives and humectants are able to maintain pliability of the reconstituted leaf sheet as well as aid in retaining moisture. The quantity of THC, the quantity of CBD, flavorings, preservatives, and humectants are infused to the reconstituted leaf sheet, providing the reconstituted leaf sheet with psychoactive and medicinal properties while additionally enhancing the reconstituted leaf sheet flavor, preventing degradation, and retaining moisture (Uren [0015]).
Claim 9. Modified Batista does not explicitly disclose that the ratio of tobacco to cannabis is from 1 percent tobacco and 99 percent cannabis to 1 percent cannabis and 99 percent tobacco.
However, when faced with a mixture, one of ordinary skill in the art would be motivated by common sense to select a 1:1 ratio, a ratio that falls within the presently claimed amount, absent evidence of unexpected or surprising results. Case law holds that "[h]aving established that this knowledge was in the art, the examiner could then properly rely... on a conclusion of obviousness, 'from common knowledge and common sense of the person of ordinary skill in the art within any specific hint or suggestion in a particular reference.'" In re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969).
Claim 11. Modified Batista discloses the reconstituted tobacco for use in a heated aerosol-generating article can have an aerosol former content of 5 to 30 weight percent on a dry weight basis (Batista [0008]). An aerosol former content of 30 weight percent would result in a filler having at most 70 weight percent reconstituted tobacco and cannabis, which falls within the claimed range of between 1 percent and 75 percent.
Claims 13 and 14. Modified Batista discloses that the sheet comprises a quantity of THC and a quantity of CBD mixed with flavorings, preservatives, and humectants. Flavorings enhance the flavor of the reconstituted leaf sheet while the preservatives and humectants are able to maintain pliability of the reconstituted leaf sheet as well as aid in retaining moisture. The quantity of THC, the quantity of CBD, flavorings, preservatives, and humectants are infused to the reconstituted leaf sheet, providing the reconstituted leaf sheet with psychoactive and medicinal properties while additionally enhancing the reconstituted leaf sheet flavor, preventing degradation, and retaining moisture (Uren [0015]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Katherine A Will whose telephone number is (571)270-0516. The examiner can normally be reached Monday-Friday 10:00AM-6:00PM(EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael 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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/KATHERINE A WILL/Primary Examiner, Art Unit 1747
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