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 .
Status of the Claims
Claims 16-30 are pending and subject to this Office Action. This is the First Action on the merits of the claims.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 16-20, 28, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Besso, et al (WO2020174073A1) and further in view of Malgat, et al (US20160309782A1).
Regarding claim 16, Besso teaches an aerosol generating article that comprises an aerosol generating substrate. The airflow passage is located between substrate outer surface and the device cavity inner surface. (Abstract) The art teaches that the substrate may comprise homiginized tobacco (p 6 ln 35) which is a homogenized plant material. The article may have a downstream segment at the downstream end of the aerosol generating article (p 1 ln 30-31) and that the downstream segment may comprise any one or any combination of any one or more of: a mouthpiece, a filter, a spacing element, a cooling element and a flavour element. (p ln 30-31)
Besso is silent with respect to the aerosol generating article having a sealing element.
Malgat, directed to the design of aerosol generating articles, teaches an aerosol generating article for use with an aerosol generating device; where the aerosol generating article has a hollow end and an pierceable film spans one end of the hollow tube. (Abstract) The pierceable film may span the distal/ upstream end of the aerosol generating article [0006] sealing the hollow portion and aerosol generating portion of the portion of the article.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Besso by including a pierceable film/ sealing element to cover the hollow distal end of an aerosol generating article as taught by Malgat because both Besso and Malgat are directed to aerosol generating articles, Malgat teaches the pierceable film is used to protect the aerosol-forming substrate from an applied flame [0009] thus prevents potential ignition from undesired heating sources, and this involves combining prior art elements according to known methods to yield predictable results.
Regarding claims 17 and 18, as discussed above, Malgat teaches the film layer is pierceable and located at the distal end of the aerosol generating article.
Regarding claims 19 and 20, a modified Besso teaches that the pierceable film can be formed from paper, a polymer, or metal. [0009], [0109]
Regarding claim 28, Besso teaches the airflow that extends down the length of the aerosol generating substrate and that the aerosol generating substrate has a length of 8mm to 12mm. (p 6 ln 11-12)
Regarding claim 30, Besso teaches the aerosol generating device for use with an aerosol generating article where the devices includes an elongate susceptor. (p 14 ln 16) The elongate susceptor is designed to be inserted into the inner cavity of the aerosol generating article. The elongate susceptor is taught to be in the shape of a blade, pin, cone, or tapered shape. (p 14 ln 16-20) The pin shape taught by Besso is considered to read on the tubular susceptor of the instant claim.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Besso, et al (WO2020174073A1) and Malgat, et al (US20160309782A1) as applied to claim 17 above, and further in view of Bowen, et al (US20190261686A1).
Regarding claim 21, neither Besso nor Malgat teach the attachment of the sealing element/ pierceable film.
Bowen, directed to the design of aerosol generating cartridges with sealing elements, teaches a film for sealing a cartridge where the heat sealing material includes a metal layer and a heat sealing layer [0080] similar to the metal or polymer sealing element taught by Malgat.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Besso and Malgat by using a heat sealing film as taught by Bowen because Besso, Malgat, and Bowen are directed to aerosol generating articles, Bowen teaches sealing smoking articles in this way preserves freshness of the contents, and prevents spill of the materials within the cartridge during shipment or handling by the user [0078], and this involves combining prior art elements according to known methods to yield predictable results.
Claims 22 to 25 are rejected under 35 U.S.C. 103 as being unpatentable over Besso, et al (WO2020174073A1) and Malgat, et al (US20160309782A1) as applied to claim 16 above, and further in view of Wang, et al (US20200352219A1).
Regarding claims 22 to 25, Besso and Malgat are silent with respect to the attachment of the sealing element/ pierceable film to the aerosol generating article.
Wang, directed to the design of aerosol generating articles, teaches cartridge that comprises a plant material that is sized to fit in a tube with a heater insertion channel in the plant material. (Abstract) A frangible cover portion is used to seal a tube containing a plant component. [0004] The art teaches that the frangible cover portion can be fragile sheet of adhesive paper in the shape of an endcap [0008] that is moisture resistant and can be pierced by the smoking device. [0061] Wang teaches that the frangible cover portion may include a frangible cover flap that extends along the length of the tube.[0061] Wang discloses that the adhesive paper has flaps that fold over the edge of the front end of the smoking article and extend down the side of the aerosol generating article. (figure 4) A person having ordinary skill would recognize that the paper cover, as taught by Wang, would need to have a moisture impermeable coating applied as paper alone is not moisture resistant.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Besso and Malgat by including a pierceable film/ sealing element to cover the hollow distal end of an aerosol generating article using an adhesive as taught by Wang because Besso, Malgat, and Wang are directed to aerosol generating articles, Wang teaches the adhesive closure is moisture resistant and prevents any particles of the plant component from dislodging before use [0061], and this involves a simple substitution of one known element for another to obtain predictable results
Claims 26 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Besso, et al (WO2020174073A1), Malgat, et al (US20160309782A1), and Wang, et al (US20200352219A1)as applied to claim 25 above, and further in view of Fernando, et al (US20150359264A1).
Regarding claim 26 and 27, Besso and Malgat as modified by Wang are silent with respect to the use of fixing bands to affix the external surface of the cover portion to the aerosol generating article.
Fernando, directed to the design of aerosol generating devices and articles, teaches the distal end of the outer wrapper of the aerosol generating article is circumscribed by a band of tipping paper. [0123] Fernando teaches the front plug may be deformed by the insertion of the heating element [0210] and a person having ordinary skill would recognize that the addition of band of tipping paper would aid in controlling the deformation.
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Besso, Malgat, and Wang by using a band of tipping paper around the portion of the article where the heating element is inserted as taught by Fernando because Besso, Malgat, Wang, and Fernando are directed to aerosol generating articles, Fernando teaches deformation of the article when inserted into the device and a person having ordinary skill would recognize that the addition of band of tipping paper would aid in controlling the deformation during insertion of the article into the device, and this involves the use of known technique to improve similar products in the same way.
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Besso, et al (WO2020174073A1) and Malgat, et al (US20160309782A1) as applied to claim 16 above, and further in view of Pijnenburg, et al (US20180177228A1).
Regarding claim 29, The prior art is silent with respect to the possible cross-sectional porosity of the peripheral wall of the substrate.
Pijnenburg, directed to the design of making aerosol forming substrates, teaches that controlling both the porosity and the porosity distribution values of an aerosol-forming rod to within predetermined limits, the quality and repeatability of a smoking experience may be optimized. [0011] The art teaches a possible desire to have a cross-sectional porosity of between 0.5 and 0.45. [0043] The claimed range overlaps the range disclosed by the prior art and is therefore considered prima facie obvious. See MPEP 2144.05
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Besso and Malgat by controlling the cross-sectional porosity of the aerosol forming rod as taught by Pijnenburg because Besso, Malgat, and Pijnenburg are directed to aerosol generating articles, Pijnenburg teaches the cross-sectional porosity and cross-sectional porosity distribution value of the rod are selected to provide a predetermined resistance to draw through the assembled heated aerosol-generating article [0048] and may also be selected to facilitate providing predetermined levels of nicotine delivery from the assembled heated aerosol-generating article when the article is consumed. [0049], and this involves the use of known technique to improve similar products in the same way.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIRGINIA R BIEGER whose telephone number is (703)756-1014. The examiner can normally be reached M-Th: 7:30-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Phillip Louie can be reached at (571)270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/V.R.B./Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
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