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 .
Terminal Disclaimer
The terminal disclaimer filed on 6-30-2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of 19/281,320 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Response to Amendment
This office action is in response to the Applicants’ arguments/remarks and other documents filed 6-30-2026.
Claim 15 is currently amended, claims 15-33 are presently examined.
Applicant’s terminal disclaimer filed on 6-30-2026, with respect to the non-statutory double patenting rejection of claims 14-34 has been fully considered and is persuasive. The non-statutory double patenting rejection of claims 15-34 has been withdrawn.
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.
The factual inquiries 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 15-22, 27, 29, and 33 are rejected under 35 U.S.C. 103 as being unpatentable over Malgat (US 10617149B2) in view of Meisner (EP 2671462 A1) English machine translation relied, Nakano (US 20150374041 A1), and Huang (CN 204212004 U), English machine translation relied upon.
Regarding Claim 15, Malgat teaches an aerosol-generating article, comprising:
a rod of aerosol-generating substrate (20, FIG 1, see e.g., column 11 lines 55-60) comprising between 5 percent to 30 percent aerosol former by weight on a dry weight basis (see e.g., column 7 lines 20-25); and
a ventilation zone arranged downstream of the rod of aerosol-generating substrate (e.g., see column 2 lines 57-65, highly perforated wrapper around hollow acetate tube downstream of aerosol forming substrate rod, see also rod in FIG 1) , wherein
the ventilation zone is arranged in a hollow tubular segment of a cardboard aerosol- cooling element (the hollow tubular segment (support element or hollow tubular element, column 8 line 1-2) can be cardboard (column 7 line 63).
the ventilation zone is configured as a hollow tubular ventilation zone (see FIG 1 and column 2 lines 57-65), wherein
the ventilation zone comprises perforations (highly perforated wrapper around hollow tubular ventilation zone, see column 2 lines 57-65), wherein
Malgat teaches one or more of the perforations (e.g., highly perforated, column 2 line 52), however Malgat is silent to suitable shapes of the perforation cross sections and therefore fails to explicitly disclose the perforations have a non-circular cross-section having an ovality and further is silent to suitable diameters of the perforations.
However, Meisner teaches wrappers for similar aerosol generating articles and teaches perforation hole patterns can be cut with lasers into the wrapper [0057], and that the suitable shapes for the holes that make up the perforations in the ventilation zone in wrappers in such articles can be round or oval shaped [0046]. Meisner also teaches slit shaped holes [0032], see also FIG 3. Meisner teaches that perforations are important to modify the overall ventilation of cigarettes and the ventilation provided by these perforations can change the amount of condensate, nicotine, and carbon monoxide in the smoke as a result dependent variable [0005], [0008].
Therefore, it would be obvious to a person of ordinary skill in the art before the filing date of the claimed invention to modify the shape of the perforation holes of Malgat to have a shape of oval or slit as taught by Meisner, because both Malgat and Meisner are directed to smoking devices with perforated holes for ventilation in aerosol generating articles, Malgat is silent in regards to suitable shapes for the perforation holes for use and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable shapes for perforation ventilation holes for a similar article. Meisner teaches known shapes of ventilation holes for a similar article and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Additionally, it would be obvious to a person of ordinary skill in the art to modify the perforations of Malgat with the teachings of Meisner, in order to modify the overall ventilation of cigarettes and the ventilation provided by these perforations, which can change the amount of condensate, nicotine, and carbon monoxide in the smoke as a result dependent variable [0005], dependent on the degree of ventilation provided [0008].
Alternatively, regarding the shape of the perforation holes being non-circular and having an ovality, it would be obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the perforations of Malgat to any shape including oval as an obvious engineering design choice
Additionally, it would be obvious for those perforations to have a non-circular cross-section having an ovality, the ovality being a ratio of a large diameter of a perforation divided by a small diameter of the perforation, of at least 1.5. The change in form or shape, without any new or unexpected results, is an obvious engineering design. See MPEP § 2144.04 IV B. More specifically, the courts have held changes in shape and aesthetic design changes to be prima facie obvious, see In re Seid, 161 F.2d 229, 73 USPQ431 (CCPA 1947) and In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966), MPEP 2144.04.
Malgat is silent to a suitable thickness of the peripheral wall of the ventilation zone and therefore Malgat fails to disclose a thickness of the peripheral wall of the ventilation zone is between 0.1 millimeter and 2.5 millimeters
However, Nakano teaches ventilation zones for a similar aerosol generating article with a similar ventilation zone and teaches a thickness of the peripheral wall of the ventilation zone is between 0.75 mm or more and 3.0 mm [0067], which overlaps with the claimed range of between 0.1 millimeter and 2.5 millimeters, In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I). see also FIG 3), Additionally it would be obvious for those perforations to have any shape as an obvious engineering design choice. The change in form or shape, without any new or unexpected results, is an obvious engineering design. See MPEP § 2144.04 IV B. Therefore it would be obvious to modify the holes to a shape such as a non-circular cross-section having an ovality, the ovality being a ratio of a large diameter of a perforation divided by a small diameter of the perforation, of at least 1.5. (E.g it would be obvious to select 2 mm for the large dimension and 1 mm for the small dimension resulting in an oval with an ovality ratio of 2 which falls within the claimed ratio.)
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the thickness of the peripheral wall of the ventilation zone of Malgat, to have a thickness of between 0.75 mm and 3 mm as taught by Nakano, because both Malgat and Nakano are directed to ventilation zones for smoking articles comprising hollow tubular ventilation zones members with peripheral walls, Malgat is silent in regards to suitable thicknesses for use in these ventilation zones and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable thicknesses for a ventilation zone in a similar smoking article, Nakano teaches known thicknesses for ventilation zones, and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Modified Malgat teaches a wrapper with one or more perforations as set forth above, however Malgat is silent to suitable dimensions for the perforations or the thickness of the wrapper with the perforations, thus Malgat fails to teach (1) one or more perforations have a width of between 0.05 millimeter and 0.2 millimeter, and wherein (2) one or more perforations have a length of between 0.25 millimeter and 1.0 millimeter.
Regarding (1) and (2), Huang teaches the perforations should have a hole size of 0.01 mm to 0.5 mm [0016] to dilute and reduce tar in the cigarette (smoke) [0019]-[0020]. Therefore, a person of ordinary skill in the art would be motivated to modify the perforations of Malgat with the perforation size taught by Huang of 0.01 mm to 0.5 mm [0008] to dilute and reduce tar in the cigarette (smoke) [0020].
It would be obvious to modify the laser cut slit width of the perforations to be 0.05 mm to 0.5 mm as taught by Huang to dilute and reduce tar, which overlaps with the claimed range of the perforations have a width of between 0.05 mm to 0.2 mm.
It would be obvious to modify the laser cut slit length of the perforations to be between 0.05 and 0.5 mm as taught by Huang to dilute and reduce tar, which overlaps with the claimed range of the perforations have a length of between 0.25mm and 1 mm. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Modified Malgat fails to explicitly disclose that the hollow tubular ventilation zone comprises a peripheral wall delimiting and abutting a hollow interior, and that one or more of the perforations extends through the peripheral wall from an outer surface of the peripheral wall to the hollow interior.
However, Nakano teaches that the hollow tubular ventilation zone (longitudinal hollow 51) comprises a peripheral wall (outer wall 53) delimiting and abutting a hollow interior ([0061]-[0062], and [0064], burning type heat source 50 comprises tubular outer wall 53 defining/partitioning the longitudinal hollow 51), and
one or more of the perforations (lateral hollow 52 is interpreted to be one or more of the perforations) extends through the peripheral wall from an outer surface of the peripheral wall to the hollow interior. (FIG 3-4, lateral hollow 52 extends in transverse direction D2 [0062], and is exposed to the exterior and communicates with longitudinal hollow 51 [0062] (e.g., extends through the peripheral wall from an outer surface of the peripheral wall to the hollow interior as shown in FIG 3/FIG4))
It would have been obvious for a person of ordinary skill in the art before the filing date of the claimed invention to modify the hollow tubular element of Malgat to provide the ventilation opening through the peripheral wall thereof and in communication with the hollow interior, as taught by Nakano such that the opening extends from an outer surface of the peripheral wall to the hollow interior as taught by Nakano in order to provide a direct fluid communication path between the exterior of the tubular element and its hollow interior thereby permitting laterally introduced air to enter the longitudinal airflow path (51) [0085] and [0087]. Such modification would have resulted in the use of a known technique to improve a similar device in the same way and would have yielded the predictable result of providing lateral airflow into the hollow interior. The use of a known technique to improve similar devices (methods or products) in the same way is likely to be obvious. See MPEP § 2143, C.
Regarding Claim 16, modified Malgat teaches the claim limitations as set forth above. Additionally, Huang teaches the perforations should have a width size of 0.01 mm to 0.5 mm [0016] which overlaps with the claimed range of the one or more perforations have a width of between 0.05 mm to 0.2 mm. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Regarding Claim 17, modified Malgat teaches the claim limitations as set forth above. Additionally, Huang teaches the perforations should have a width size of 0.01 mm to 0.5 mm [0016] which overlaps with the claimed range of the one or more perforations has a length of between 0.5 millimeter and 0.6 millimeter. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Regarding Claim 18, modified Malgat teaches the claim limitations as set forth above. Additionally, Meisner teaches the perforations can be oval [0046].
Regarding Claim 19, modified Malgat teaches the claim limitations as set forth above. Additionally, Meisner teaches the perforations can be elongated slit shaped holes [0032].
Regarding Claim 20, modified Malgat teaches the claim limitations as set forth above. Addiitonally, Meisner teaches the perforations can be elongated slit shaped holes [0032], see also FIG 1, example elongated slit perforations 104.
Regarding Claim 21, modified Malgat teaches the claim limitations as set forth above. Additionally, Meisner teaches for one or more of the perforations, a longitudinal axis of the perforation is parallel to a longitudinal axis of the aerosol-generating article (a longitudinal axis (width dimension) of the perforation is parallel to the longitudinal axis of the aerosol generating article. (See [0043], and FIG 1 (104), the slit/perforation lengths are in the circumferential direction so the width of the slit is in the longitudinal direction/axis).
Regarding Claim 22, modified Malgat teaches the claim limitations as set forth above. Additionally, Meisner teaches the perforations can be oval [0046]. Meisner fails to teach “ovality”. However, it would be obvious to a person of ordinary skill in the art to change the size of the oval perforations taught by Meisner to be any size as desired. Ovality is merely a measurement of the ratio between the size of the length and size of the width of the holes. It would be obvious for a person of ordinary skill in the art to change the size of the length and width of the holes respectively to achieve an ovality of 2 as claimed. A change in size is generally recognized as being within the level of one of ordinary skill in the art absent evidence that the change in size results in a difference in performance. See MPEP § 2144.04 IV A.
Regarding Claim 27, modified Malgat teaches the claim limitations as set forth above.
Malgat teaches perforations in the ventilation zone as set forth above, and additionally teaches perforations near the downstream end or distal end of the smoking device (column 2 lines 39-50).
However, Malgat is silent to a suitable distance between the perforations and the downstream end of the rod of aerosol generating substrate, and therefore fails to teach a distance between the perforations of the ventilation zone and a downstream end of the rod of aerosol- generating substrate is between 1 millimeter and 6 millimeters.
However, adjusting the distance between the perforation pattern is merely a change in size. It would be obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the size of the distance between the ventilation zone and a downstream end of the rod of aerosol generating material as a size change preference. More specifically it would be obvious to a person of ordinary skill in the art to modify the size of the distance between the perforations and a downstream end of the rod of aerosol- generating substrate to be between 1 millimeter and 6 millimeters. A change in size is generally recognized as being within the level of one of ordinary skill in the art absent evidence that the change in size results in a difference in performance. See MPEP § 2144.04 IV A.
Regarding Claim 29, modified Malgat teaches the claim limtations as set forth above. Additionally, Malgat teaches the perforations are configured to allow ambient air to be drawn into the ventilation zone. (see column 11 lines 65- column 12 line 1, the outer wrapper is highly perforated paper that provides little or no air resistance for (ambient) air to flow through the paper),
Regarding Claim 33, Malgat teaches the claim limitations as set forth above. Additionally, Malgat teaches an aerosol-generating system comprising an aerosol-generating device having a cavity configured to receive the aerosol-generating article according to claim 15 (see FIG 3 of Malgat which receives the aerosol generating article).
Claims 23-26 are rejected under 35 U.S.C. 103 as being unpatentable over Malgat (US 10617149B2), Malgat (US 10617149B2) in view of Meisner (EP 2671462 A1) English machine translation relied, Nakano (US 20150374041 A1), and Huang (CN 204212004 U), English machine translation relied upon, as applied to claim 15 above, and further in view of Adams (US5666976A)
Regarding Claim 23, modified Malgat teaches all of the claim limitations as set forth above. Additionally, Malgat teaches the device includes a hollow tubular ventilation zone as set forth above however Malgat is silent to a suitable inner diameter of the hollow tubular ventilation zone that is suitable for smoke flow and therefore fails to teach the inner diameter of the hollow tubular ventilation zone is between 2.5 millimeter and 5.0 millimeters.
However, Adams teaches a similar smoking device with a similar hollow tubular ventilation zone (free flow filter 96, see column 7 lines 47-40) and teaches the inner diameter of the hollow tubular ventilation zone is between 2 millimeters and 6 millimeters (column 7 line 48) which overlaps with the claimed range of between 2.5 millimeter and 5.0 millimeters. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Therefore it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the inner diameter of the hollow tubular ventilation zone of Malgat to have a diameter of 2 to 6 millimeters as taught by Adams because both Malgat and Adams are directed to smoking devices comprising hollow tubular channels, Malgat is silent in regards to suitable diameters for use in hollow tubular portions and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable thicknesses for such channels in a similar smoking article, Adams teaches known thicknesses for a similar hollow tubular ventilation zone, and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Regarding Claim 24, modified Malgat teaches all of the claim limitations as set forth above. Additionally, Malgat teaches the device includes a hollow tubular ventilation zone as set forth above however Malgat is silent to suitable inner diameters of the hollow tubular ventilation zones and therefore fails to teach the inner diameter of the hollow tubular ventilation zone is 3.3 millimeters.
However, Adams teaches a similar smoking device with a similar hollow ventilation zone and teaches the inner diameter of the hollow tubular ventilation zone should be between 2 millimeters and 6 millimeters (see column 7 line 48) which overlaps with the claimed range of 3.3 millimeters. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Therefore it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the inner diameter of the hollow tubular ventilation zone of Malgat to have a diameter of 2 to 6 millimeters as taught by Adams because both Malgat and Adams are directed to smoking devices comprising hollow tubular members, Malgat is silent in regards to suitable diameters for use and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable thicknesses for a similar smoking article, Adams teaches known thicknesses for a similar hollow tube, and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Regarding Claim 25, modified Malgat teaches the claim limitations as set forth above. Additionally, Malgat teaches the length of the ventilation zone/hollow tubular element 30 is 5 mm to 15 mm long (hollow tubular support element, column 8 lines 14-15).
Malgat teaches the ventilation zone is arranged in a hollow tubular segment of an aerosol- cooling element (e.g., see column 2 lines 57-65, highly perforated wrapper around hollow acetate tube downstream of aerosol forming substrate rod, see also rod in FIG 1) and wherein
However, Malgat is silent to the length or volume of the hollow tubular element. Therefore, Malgat alone fails to disclose the hollow tubular segment has an inner volume of between 130 mm3 and 200 mm3.
Specifically, Malgat teaches the hollow tubular element section 30 is 7 mm to 15 mm long (hollow tubular support element, column 8 lines 14-15). However, Malgat is silent to the volume or diameter of this cylindrical hollow tubular support section 30 which is necessary in order to calculate the volume of the cylinder of Malgat.
However, Adams teaches a similar smoking device with a hollow tubular ventilation zone and teaches suitable inner diameters for such hollow tubular zones and teaches the inner diameter of the hollow tubular ventilation zone is between 2 millimeters and 6 millimeters (see column 7 line 48). Thus, Malgat in view of Adams teaches the volume of the hollow tubular element can range from 15.7 mm3 to about 424.1 mm3. Which overlaps with the claim limitation the hollow tubular segment has an inner volume of between 130 mm3 and 200 mm3. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the inner diameter of the hollow tubular ventilation zone of Malgat to have a diameter of 2 to 6 millimeters as taught by Adams because both Malgat and Adams are directed to smoking devices comprising hollow tubular members, Malgat is silent in regards to suitable diameters for use and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable thicknesses for a similar smoking article, Adams teaches known thicknesses for a similar hollow tube, and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Regarding Claim 26, modified Malgat teaches the claim limitations as set forth above. Additionally, Malgat teaches the length of the ventilation zone/hollow tubular element 30 is 5 mm to 15 mm long (hollow tubular support element, column 8 lines 14-15).
Malgat teaches the ventilation zone is arranged in a hollow tubular segment of an aerosol- cooling element (e.g., see column 2 lines 57-65, highly perforated wrapper around hollow acetate tube downstream of aerosol forming substrate rod, see also rod in FIG 1) and wherein
However, Malgat is silent to the length or volume of the hollow tubular element. Therefore, Malgat alone fails to disclose the hollow tubular segment has an inner volume of 170 mm3.
Specifically, Malgat teaches the hollow tubular element section 30 is 7 mm to 15 mm long (hollow tubular support element, column 8 lines 14-15).
However, Malgat is silent to the volume or diameter of this cylindrical hollow tubular section 30 which is necessary in order to calculate the volume of the cylinder of Malgat.
However, Adams teaches a similar smoking device with a hollow tubular ventilation zone and teaches suitable inner diameters for such hollow tubular zones and teaches the inner diameter of the hollow tubular ventilation zone is between 2 millimeters and 6 millimeters (see column 7 line 48). Thus, Malgat in view of Adams teaches the volume of the hollow tubular element can range from 15.7 mm3 to about 424.1 mm3 the claim limitation the hollow tubular segment has an inner volume of 170 mm3, falls within this range.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the inner diameter of the hollow tubular ventilation zone of Malgat to have a diameter of 2 to 6 millimeters as taught by Adams because both Malgat and Adams are directed to smoking devices comprising hollow tubular members, Malgat is silent in regards to suitable diameters for use and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable thicknesses for a similar smoking article, Adams teaches known thicknesses for a similar hollow tube, and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Claim 28 are rejected under 35 U.S.C. 103 as being unpatentable over Malgat (US 10617149B2) in view of Meisner (EP 2671462 A1) English machine translation relied, Nakano (US 20150374041 A1), and Huang (CN 204212004 U), English machine translation relied upon as applied to claim 15 above, and further in view of Besso (US 20180271143 A1).
Regarding Claim 28, Malgat teaches the claim limitations as set forth above. Additionally, Malgat teaches perforations in the ventilation zone as set forth above, and additionally teaches perforations near the downstream end or distal end of the smoking device (column 2 lines 39-50).
However, Malgat is silent to a suitable distance between the perforations and the downstream end of the aerosol generating article, and therefore fails to teach a distance between the perforations of the ventilation zone and a downstream end of the aerosol generating article is between 10 millimeters and 26 millimeters.
Besso teaches a similar perforated smoking device (see FIG 1) and teaches suitable positioning of perforations relative to the mouth end or downstream end of the rod of aerosol generating material and teaches the perforations are 2 to 20 mm upstream from the mouth end of the ventilation zone ([0052], see also [0054] the ventilation zone is the portion with perforations, see also FIG 1), which overlaps the claimed range, In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I). Besso teaches that having the perforations this range from the downstream end of the aerosol generating device is preferred because this provides an appropriate length of hollow tube for ventilation air and mainstream smoke to mix before they reach the mouth end of the smoking article.
It would be obvious for a person of ordinary skill in the art to modify the perforations of modified Malgat with the teachings of Besso to provide an appropriate length of hollow tube for ventilation air and mainstream smoke to mix before they reach the mouth end of the smoking article.
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Malgat (US 10617149B2) Meisner (EP 2671462 A1) English machine translation relied, Nakano (US 20150374041 A1), and Huang (CN 204212004 U), English machine translation relied upon as applied to claim 29 above, and further in view of Hepworth (CN111787815A, US patent publication US 2021000169A1 relied upon for English translation)
Regarding Claim 30, modified Malgat teaches all of the claim limitations as set forth above. However, Malgat is silent to a suitable ratio of ambient air drawn into the ventilation zone and air drawn into the ventilation zone through the rod of the aerosol forming substrate. Thus, Malgat fails to explicitly disclose the ratio of ambient air drawn into the ventilation zone and air drawn into the ventilation zone through the rod of the aerosol forming substrate.
However, Hepworth also teaches a smoking device with a ventilation area and teaches that a suitable ratio of ambient air drawn into the ventilation zone through the perforations and air drawn into the ventilation zone through the rod of aerosol-forming substrate is between 5 percent and 75 percent.
Specifically, Hepworth teaches the ratio of the ambient air drawn into the ventilation zone through the perforations and air drawn into the ventilation zone through the rod of aerosol-forming substrate is at least 15% [0079] and further teaches the ventilation ratio is between 50% and 85% [0080], which overlaps with the claimed range. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the ventilation ratio of Malgat to have a ratio of ambient air drawn into the ventilation zone through the perforations and air drawn into the ventilation zone through the rod of aerosol forming substrate of at least 15% or more specifically between 50% and 85% as taught by Hepworth because both Malgat and Hepworth are directed to smoking articles comprising perforated ventilation zones with ambient air being drawn in, Malgat is silent in regards to suitable ventilation ratios for use, and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable ventilation ratios for a similar smoking article. Hepworth teaches known ventilation ratios for a similar smoking device, and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Malgat (US 10617149B2) Meisner (EP 2671462 A1) English machine translation relied, Nakano (US 20150374041 A1), and Huang (CN 204212004 U), English machine translation relied upon as applied to claim 15 above, and further in view of Gambs (US 20150289562 A1).
Regarding Claim 31, modified Malgat teaches all of the claim limitations as set forth above. Additionally, Malgat teaches RTD through the aerosol forming substrate but is silent to a suitable RTD through the filter downstream of the ventilation zone.
However, Gambs teaches similar ventilated smoking article that includes a ventilation area and a filter plug downstream of the ventilation zone, wherein a resistance to draw of the filter plug is between 5 millimetres H2O and 80 millimetres H2O.
Specifically, Gambs teaches the filter segment that follows the ventilation area has a RTD of 40 mm WG to 100 mm WG (mmH2O) (see [0028], and [0063], which overlaps with the claimed range of between 5 millimetres H2O and 80 millimetres H2O. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the filter of Malgat to have a RTD of 40 mmH2O to 100 mmH2O as taught by Gambs, because both Malgat and Gambs are directed to smoking articles comprising ventilation zones, Malgat is silent in regards to suitable RTD following the ventilation zone through the filter and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable resistance to draw for a similar filter in a similar smoking article, Gambs teaches known RTD for a similar filter downstream of a ventilation zone, and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Claim 32 is rejected under 35 U.S.C. 103 as being unpatentable over Malgat (US 10617149B2), Meisner (EP 2671462 A1) English machine translation relied, Nakano (US 20150374041 A1), and Huang (CN 204212004 U), English machine translation relied upon, as applied to claim 15 above, and further in view of Campitelli (WO2020127116A2, US pub US 20220007710A1 relied upon).
Regarding Claim 32, modified Malgat teaches all of the claim limitations as set forth above. Additionally, Malgat teaches a substrate wrapper at least partially circumscribes the rod of aerosol forming substrate (See FIG 1-2 part 60, wrapper illustrated circumscribing rod, and column 13 lines 5-15) however Malgat is silent to a suitable thickness of wrapper for use.
However, Campitelli teaches suitable thicknesses for wrappers for use in aerosol generating articles and teaches the substrate wrapper has a thickness of 50 micrometers or more.
Specifically, Campitelli teaches the wrapper has a thickness of 10 to 100 micrometers [0345] which overlaps the claimed range of 50 micrometers or more. In the case where claimed ranges “overlap or lie inside ranges disclosed by prior art” a prima facie case of obviousness exists. See MPEP § 2144.05 (I).
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the wrapper of Malgat to have a thickness of 10 to 100 micrometers as taught by Campitelli, because both Malgat and Campitelli are directed to smoking articles with wrappers, Malgat is silent to suitable thicknesses of wrappers for use and one of ordinary skill in the art would be motivated to look to a similar reference to find suitable thicknesses of wrappers for a similar smoking article. Campitelli teaches known wrapper thicknesses for use and this merely involves applying suitable characteristics to a similar product with a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed 6-30-2026 regarding the 35 USC 103 rejections have been fully considered but they are not persuasive. With the present amendment, Applicant has amended the claims to require inter alia “the hollow tubular ventilation zone comprises a peripheral wall delimiting and abutting a hollow interior” and “the hollow tubular ventilation zone comprises a peripheral wall delimiting and abutting a hollow interior”. Regarding the present amendment Applicant argues the cited prior art fails to teach or suggest the claim limitations as set forth.
Applicant argues on page 8 of the remarks that Malgat whether considered along or in combination with Meisner, Nakano, Huang, Adams, Besso, Hepworth, Gambs, and/or Campitelli and in view of knowledge generally available to a person of ordinary skill in the art would not have let a person to each and every feature claimed. This is not found persuasive for the reasons set forth above and most specifically regarding the newly presented limitations in view of Malgat as modified by Nakano as set forth above.
Specifically, regarding the reference that has been found to teach these limitations, Applicant argues that Nakano does not provide relevant teaching or suggested for the claimed wall thickness and argues that Nakano does not teach or suggest the claimed peripheral wall of the hollow tubular ventilation zone as required by the newly presented claim limitations.
This is not found persuasive because as set forth above, and repeated as follows for the purposes of clarity, Nakano teaches that the hollow tubular ventilation zone (longitudinal hollow 51) comprises a peripheral wall (outer wall 53) delimiting and abutting a hollow interior ([0061]-[0062], and [0064], burning type heat source 50 comprises tubular outer wall 53 defining/partitioning the longitudinal hollow 51), and
one or more of the perforations (lateral hollow 52 is interpreted to be one or more of the perforations) extends through the peripheral wall from an outer surface of the peripheral wall to the hollow interior. (FIG 3-4, lateral hollow 52 extends in transverse direction D2 [0062], and is exposed to the exterior and communicates with longitudinal hollow 51 [0062] (e.g., extends through the peripheral wall from an outer surface of the peripheral wall to the hollow interior as shown in FIG 3/FIG4))
Applicant argues the remaining claims are allowable by virtue of their dependence on allowable claim 15, this is not found persuasive for the reasons set forth above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael T Fulton whose telephone number is (703)756-1998. The examiner can normally be reached Monday-Friday 7:00 - 4:30 ET.
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/M.T.F./Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747
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