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 .
Information Disclosure Statement
The information disclosure statement (IDS) filed on 6/14/2024, 6/13/2025, 9/18/2025, 12/16/2025, 6/1/2026 has been considered by the Examiner.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 10-11 and 16 are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Woodson (US2004/0129280A1).
Regarding claims 10-11, Woodson teaches a non-combustion-heating-type stick (electrically heated cigarette “23” as shown in Figs. 1-2 [title, abstract]), comprising:
a substrate including an aerosol source (tobacco rod “60” includes tobacco plug “80” [0030-0033]),
a cooling segment disposed downstream of the substrate in a longitudinal direction of the stick and the cooling segment configured to generate an aerosol by cooling vapor generated from the substrate (the air gap/void “90” is considered to be the cooling segment. As in Figs. 1-2, “90” is clearly located downstream of a substrate portion “80” [0033]. The air gap would necessarily result in a cooling of some amount from the tobacco section in the direction of the outlet, and it is noted that the air gap/void “90” is situated in the same manner as the cooling segment of the instant application Fig. 1),
a filter segment disposed downstream of the cooling segment (as in Figs. 1-3, the filter segment may include free flow filter “74”, filter “92”, filter “150”, and mouthpiece filter plug “94” [0030-0034, 0048], and as in the Figs., these filters are clearly all downstream of the cooling segment “90”),
wherein at least one selected from the group consisting of the substrate, the cooling segment, and the filter segment contains a porous adsorbent wherein the porous adsorbent is activated carbon (the cigarette "23" may include one or more adsorbents to remove gas phase components form the tobacco smoke. The adsorbent may include one or more porous materials through which tobacco smoke can flow, and in a preferred embodiment the adsorbent is activated carbon. For example, the adsorbent can include activated carbon particles disposed in voids within the filter, or activated carbon particulates mixed into fibrous material or paper. Activated carbon can have different porous properties such as selected void size and total void volume [0041-0042]).
Regarding claim 16, Woodson teaches the stick wherein the filter segment includes a plurality of filter segments (the filter segments may include “74”, “92”, “150”, and “94” [0030-0034, 0048]), and the porous adsorbent is disposed in a cavity formed between adjacent filter segments of the plurality of filter segments (the activated carbon may be disposed within voids in the filter [0041-0042]. When the activated carbon is in the voids in the filter of “92” for example, this would be considered to be the activated carbon in the cavity, and the filters located on either side (such as “74” and “94” would be the adjacent filter segments), such that Woodson clearly teaches the claimed arrangement).
Claims 10-11, 13, 15, 17-18 are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Yamada (TW202137895A).
Regarding claims 10-11, Yamada teaches a non-combustion heating stick (consumable as in Fig. 12) comprising:
A substrate including an aerosol source (smokeable substance “111” in Fig. 12),
A cooling segment downstream of the substrate in a longitudinal direction of the stick which generates an aerosol by cooling vapor (cooling segment “114”, as in Fig. 12, is located immediately downstream from the tobacco/smokeable substance portion. This portion cools the vapor from the substrate [pg. 40 of machine translation]),
A filter segment disposed downstream of the cooling segment (filter “115” is immediately downstream of the cooling section [Fig. 12]),
At least one of the group contains a porous adsorbent which is activated carbon (the filter may contain activated carbon [pg. 13, 16-17 of machine translation]).
Regarding claim 13, Yamada teaches a stick wherein the pore volume of pores is 0.2 cm3/g to 0.9cm3/g (The pore volume of the activated carbon may be from 400-800 uL/g, which is equivalent to 0.4 to 0.8 cm3/g [pgs. 16-17 of machine translation]. As the pore size lies within the claimed range, and as Yamada teaches that all of the pores have the stated volume, the claim limitation is clearly taught by Yamada).
Regarding claim 15, Yamada teaches a stick wherein the BET surface area is 600-1800m2/g (The BET surface area is preferably from 1100-1600 m2/g [pg. 16 of machine translation of Yamada]).
Regarding claim 17, Yamada teaches the cooling segment includes a plurality of perforations which are 4mm or more away from a boundary between the cooling segment and filter segment (as in pg. 18 of the machine translation, the cooling section is provided with openings/ventilations, which are located 4mm or more from the boundary of the cooling section and the filter section).
Regarding claim 18, Yamada teaches a stick wherein the length of the cooling segment is 15-25mm (the cooling section is greater or equal to 20mm [Pgs. 18-19 of machine translation]).
Claims 24-29 are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Yamada (TW202137895A).
Regarding claim 24, Yamada teaches a non-combustion heating stick (consumable as in Fig. 12) comprising:
A substrate including an aerosol source (smokeable substance “111” in Fig. 12),
A cooling segment downstream of the substrate in a longitudinal direction of the stick which generates an aerosol by cooling vapor (cooling segment “114”, as in Fig. 12, is located immediately downstream from the tobacco/smokeable substance portion. This portion cools the vapor from the substrate [pg. 40 of machine translation]),
A filter segment disposed downstream of the cooling segment (filter “115” is immediately downstream of the cooling section [Fig. 12]),
At least one of the group contains a porous adsorbent which is activated carbon (the filter may contain activated carbon [pg. 13, 16-17 of machine translation]).
the pore volume of pores is 0.2 cm3/g to 0.9cm3/g (The pore volume of the activated carbon may be from 400-800 uL/g, which is equivalent to 0.4 to 0.8 cm3/g [pgs. 16-17 of machine translation]. As the pore size lies within the claimed range, and as Yamada teaches that all of the pores have the stated volume, the claim limitation is clearly taught by Yamada).
Regarding claim 25, Yamada teaches a stick wherein the BET surface area is 600-1800m2/g (The BET surface area is preferably from 1100-1600 m2/g [pg. 16 of machine translation of Yamada]).
Regarding claim 26, Yamada teaches a stick with a cooling segment between the substrate and filter in a hollow cylindrical shape (cooling segment “114” as in Fig. 12 is clearly between the filter and tobacco portion. The cooling portion may be a cylindrical member with a hollow cavity in the middle [Fig. 12, pg. 17 of machine translation]).
Regarding claim 27, Yamada teaches a stick where the plurality of perforations is such that an air inflow rate is 10-90vol% (the intake ratio is preferably 10-90% by volume [pg. 19 of machine translation]).
Regarding claim 28, Yamada teaches a stick wherein the substrate was an aspect ratio of h/w greater than 1 (the aspect ratio is greater than or equal to 1 [pg. 41 of machine translation]).
Regarding claim 29, Yamada teaches a stick wherein the moisture content is 10-15 mass % (the moisture content of the tobacco filler is preferably 11-13% by weight [pg. 21 of machine translation]).
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 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1), as applied to claim 10 above, and further in view of Branton (WO2013001288A1).
Regarding claim 12, Woodson teaches that the stick includes a porous adsorbent of activated carbon. Woodson teaches that the activated carbon may have different porosity characteristics, such as selected pore size and total pore volume [0041], and Woodson does not limit the type of activated carbon utilized in its electronic cigarette.
Branton teaches an activated carbon which is utilized with a smoking article such as a cigarette [Fig. 2], as the carbon material allows for excellent filtration from the vapor phase of the tobacco smoke [pg. 3]. Branton describes the activated carbon as having micropores of less than 2nm, mesopore between 2-50nm, and macropores as greater than 50nm, as understood in the art [pg. 6]. Branton’s activated carbon has preferably from 20% to 65% of the pore volume in macropores, that being pores greater than 50nm [pgs. 16-17]. Therefore, the pore volume of pores being 50nm or greater would be 20-65%, of the combined pore volume. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art would have found it obvious to modify the stick of Woodson so as to utilize the activated carbon as suggested by Branton. As Woodson is silent as to the specific characteristics of its activated carbon, one would have found it obvious to utilize an activated carbon known in the art as in Branton, and one would have expected properties of improved filtration/adsorption for the smoking process [pg. 3, 6, 18]. It would have been obvious to choose any type of activated carbon, including the type suggested by Branton, and thereby provide a heating stick suitable for filtering/adsorbing during use. Case law holds that the selection of a known material based on suitability for its intended use support prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045)". See MPEP 2144.07.
Regarding claim 13, modified Woodson makes obvious a stick wherein a pore volume of pores having a size 50-5000nm is 0.2 cm3/g to 0.9cm2/g (as in the rejection of claim 12 above, Branton teaches an activated carbon which would have been obvious to apply to the stick of Woodson so as to obtain a working stick for adhering chemicals during use, for the rationale listed above. Branton teaches that the activated carbon of the invention may have a pore volume of from 0.3 cm3/g to 1cm3/g [pg. 17]. As Branton teaches that the carbon material of the invention would have such a pore volume, this would necessarily mean that the pores with a size from 50-5000nm would also have such a pore volume. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Regarding claim 14, modified Woodson makes obvious a stick wherein a ratio of a pore volume of size less than 2nm to a total pore volume of pores having a size of 5000nm or less is 70% or less (as in the rejection of claim 12 above, Branton teaches an activated carbon which would have been obvious to apply to the stick of Woodson so as to obtain a working stick for adhering chemicals during use, for the rationale listed above. Branton’s activated carbon has preferably from 20% to 65% of the pore volume in macropores, that being pores greater than 50nm [pgs. 16-17]. The pore volume of pores less than 50nm would therefore be from 35% to 80%. These suggested values therefore overlap the claimed range at least when the amount of macropores is 30% or higher. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Regarding claim 15, modified Woodson makes obvious a stick wherein the activated carbon has a BET specific surface area from 600-1800 m2/g (as in the rejection of claim 12 above, Branton teaches an activated carbon which would have been obvious to apply to the stick of Woodson so as to obtain a working stick for adhering chemicals during use, for the rationale listed above. The BET surface area of the porous carbon materials is preferably between 500-1300 m2/g [pg. 16]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
In the alternate, claims 13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1), as applied to claim 10 above, and further in view of Yamada (TW202137895A).
In the alternate regarding claim 13, Woodson teaches that the stick includes a porous adsorbent of activated carbon. Woodson teaches that the activated carbon may have different porosity characteristics, such as selected pore size and total pore volume [0041], and Woodson does not limit the type of activated carbon utilized in its electronic cigarette.
Yamada teaches a smoking system involving an electrically heated article which includes activated carbon in the filer [pg. 16 of machine translation]. The pore volume of the activated carbon may be from 400-800 uL/g, which is equivalent to 0.4 to 0.8 cm3/g [pgs. 16-17 of machine translation]. As the overall pores substantially overlap with the claimed range, it would be prima facie obvious that the pores having a size of 50-5000 would similarly have the same pore volume which is suggested by Yamada.
One of ordinary skill in the art would have found it obvious to modify the stick of Woodson so as to utilize the activated carbon as suggested by Yamada. As Woodson is silent as to the specific characteristics of its activated carbon, one would have found it obvious to utilize an activated carbon known in the art as in Yamada, and one would have expected properties of improved filtration/adsorption for the smoking process [pg. 14-17 of machine translation]. It would have been obvious to choose any type of activated carbon, including the type suggested by Yamada, and thereby provide a heating stick suitable for filtering/adsorbing during use. Case law holds that the selection of a known material based on suitability for its intended use support prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045)". See MPEP 2144.07.
In the alternate regarding claim 15, modified Woodson further suggests the activated carbon has a BET from 600-1800m2/g (as in the rejection of claim 13 above, it would have been obvious to apply the activated carbon as suggested by Yamada to the stick of Woodson so as to obtain a working stick for adhering chemicals during use for the rationale listed above. The BET surface area is preferably from 1100-1600 m2/g [pg. 16 of machine translation of Yamada]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Claims 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1), as applied to claim 10 above, and further in view of England (US2019/0116874A1).
Regarding claim 17, Woodson teaches that perforations comprising slits may be formed at locations so as to control the resistance to draw [0036]. Woodson details that the lengths and distribution of perforations may be adjusted as necessary [0094]. Woodson is silent as to the lengths of the cooling segment/filter segment. England teaches a cooling segment “307” which is present on the article “301” [Figs. 3-4], where the cooling segment defines an air gap so as to provide a thermal gradient along the length of the segment [0025]. A ventilation region “317” which comprises perforations into the segment are provided [Figs. 3-4, 0042-0047]. The ventilation holes/perforations are provided to aid with the cooling of the article [0042]. The ventilation holes may be located at least 11mm from the proximal end of the article [0045]. The length of the filter segment and mouth end segment may each be 6mm for example [0035-0037], wherein these equate to segments 309 and 311 in Figs. 3-4. When the filter segments 309 and 311 are at the lower end of their range such as 6mm each, and the ventilation holes are located 20mm away from the proximal end of the article [0046], the ventilation holes would be 8mm from the boundary with the filter segment. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art would have found it obvious to modify the cooling segment of Woodson so as to have the ventilation holes/placement as suggested by England. One would have been motivated so as to improve the cooling of the segment, and the placement of the ventilation holes would ensure that the holes are not covered during use [0042-0047]. It would have been obvious to work within the ranges provided by England, as Woodson is silent as to the associated lengths, and one of ordinary skill in the art would have landed upon the ventilation holes on the cooling segment spaced apart by at least 4mm from the filter segment, within the range suggested by England of the ventilation holes being at least 11mm from the proximal end of the article.
Regarding claim 18, Woodson teaches that length of the lengths may be adjusted in order to adjust the smoking characteristics of the cigarette “23”, including adjustments to taste, draw, delivery [0094]. Woodson does not explicitly state that a length of the cooling segment may be from 15-25mm, however such lengths are entirely conventional/ubiquitous within the art. England, for example, teaches an article with a cooling section “307” which aids with the cooling of the article [0042]. The length of the cooling segment may range from 20-30mm [0026]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art would have found it obvious to modify the length of the cooling segment to be as suggested by England, as Woodson is silent as the specific length thereof. One would have been motivated so as to ensure that the temperature of the article is lowered properly [0042, 0025-0027]. And additionally, it has been held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device (In Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984) cert. denied, 469 U.S. 830, 225 USPQ 232 (1984)). See MPEP 2144.04 (IV).
Claims 12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Yamada (TW202137895A), as applied to claim 11 above, and further in view of Branton (WO2013001288A1).
Regarding claims 12 and 14, Yamada does not explicitly give a ratio of pore volume of pores from 50-5000nm having a total pore volume being 15% or more and the ratio for pores being less than 2nm being 70% or less.
Branton teaches an activated carbon which is utilized with a smoking article such as a cigarette [Fig. 2], as the carbon material allows for excellent filtration from the vapor phase of the tobacco smoke [pg. 3]. Branton describes the activated carbon as having micropores of less than 2nm, mesopore between 2-50nm, and macropores as greater than 50nm, as understood in the art [pg. 6]. Branton’s activated carbon has preferably from 20% to 65% of the pore volume in macropores, that being pores greater than 50nm [pgs. 16-17]. Therefore, the pore volume of pores being 50nm or greater would be 20-65%, of the combined pore volume. Within this range such as at 35%, the amount of pores from 50-5000nm would necessarily be greater than 15% (it would be 35%), and the amount of pores less than 2nm would be less than 70% (the remaining pores less than 50nm would be 65%). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art would have found it obvious to modify the stick of Yamada so as to utilize the activated carbon pore volume characteristics as suggested by Branton. As Yamada is silent as to the pore volume ratios of the activated carbon, and as there would necessarily be pore volumes of some amount, it would have been obvious to use these known pore volume ratios of Branton. One would have expected properties of improved filtration/adsorption for the smoking process [pg. 3, 6, 18].
Claims 19-22 are rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1) in view of Branton (WO2013001288A1).
Regarding claim 19, Woodson teaches a non-combustion-heating-type stick (electrically heated cigarette “23” as shown in Figs. 1-2 [title, abstract]), comprising:
a substrate including an aerosol source (tobacco rod “60” includes tobacco plug “80” [0030-0033]),
a filter segment disposed downstream of the cooling segment (as in Figs. 1-3, the filter segment may include free flow filter “74”, filter “92”, filter “150”, and mouthpiece filter plug “94” [0030-0034, 0048], and as in the Figs., these filters are clearly all downstream of the cooling segment “90”),
wherein at least one selected from the group consisting of the substrate, the cooling segment, and the filter segment contains a porous adsorbent wherein the porous adsorbent is activated carbon (the cigarette "23" may include one or more adsorbents to remove gas phase components form the tobacco smoke. The adsorbent may include one or more porous materials through which tobacco smoke can flow, and in a preferred embodiment the adsorbent is activated carbon. For example, the adsorbent can include activated carbon particles disposed in voids within the filter, or activated carbon particulates mixed into fibrous material or paper. Activated carbon can have different porous properties such as selected void size and total void volume [0041-0042]).
Woodson teaches that the activated carbon may have different porosity characteristics, such as selected pore size and total pore volume [0041], and Woodson does not limit the type of activated carbon utilized in its electronic cigarette. Woodson does not specifically list the characteristics of the activated carbon used. Branton teaches an activated carbon which is utilized with a smoking article such as a cigarette [Fig. 2], as the carbon material allows for excellent filtration from the vapor phase of the tobacco smoke [pg. 3]. Branton describes the activated carbon as having micropores of less than 2nm, mesopore between 2-50nm, and macropores as greater than 50nm, as understood in the art [pg. 6]. Branton’s activated carbon has preferably from 20% to 65% of the pore volume in macropores, that being pores greater than 50nm [pgs. 16-17]. Therefore, the pore volume of pores being 50nm or greater would be 20-65%, of the combined pore volume. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art would have found it obvious to modify the stick of Woodson so as to utilize the activated carbon as suggested by Branton. As Woodson is silent as to the specific characteristics of its activated carbon, one would have found it obvious to utilize an activated carbon known in the art as in Branton, and one would have expected properties of improved filtration/adsorption for the smoking process [pg. 3, 6, 18]. It would have been obvious to choose any type of activated carbon, including the type suggested by Branton, and thereby provide a heating stick suitable for filtering/adsorbing during use. Case law holds that the selection of a known material based on suitability for its intended use support prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045)". See MPEP 2144.07.
Regarding claim 20, modified Woodson suggests a stick wherein the D10 is 250um to 1200um (the particle sizes of the invention may range from 10-1500um, and the mean particle size will preferably range from 250-750um [pg. 18 of Branton]. When the particle sizes of the invention are in an upper range of the suggested ranges, the D10 would also be within the suggested range. For example, If the particles sizes of the invention ranged from 250-1250um, within the range of suggested particle sizes, the D10 of the invention would necessarily land within the claimed limitation. And one of ordinary skill in the art would have reasonably landed upon a D10 between 250um-1200um in forming a porous carbon which is small enough to have a large surface area for filtration while also being large enough for the smoke being drawn without overly restricting [pg. 18 of Branton]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Additionally, it is noted that Applicant has not demonstrated a sufficient showing of unexpected results nor criticality).
Regarding claim 21, modified Woodson suggests a stick wherein the activated carbon has a D50 from 350 to 1500um (the particle sizes of the invention may range from 10-1500um, and the mean particle size will preferably range from 250-750um [pg. 18 of Branton]. The D50 particle size would be expected to be substantially close to a mean particle size, and given the significant overlap between the particle sizes suggested by Branton and those of the instant application, one of ordinary skill in the art would have reasonably landed upon a D50 between 350-1500um in forming a porous carbon which is small enough to have a large surface area for filtration while also being large enough for the smoke being drawn without overly restricting [pg. 18 of Branton]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Additionally, it is noted that Applicant has not demonstrated a sufficient showing of unexpected results nor criticality).
Regarding claim 22, modified Woodson makes obvious a stick wherein the filter segment includes a center hole part having a hollow portion (filter portions “74” or “92” may be considered to be this filter segment, wherein each comprise a center hole part with a hollow portion [see Figs. 1-2]), and the center hole part includes a filling layer and an inner wrapping paper covering the filling layer (see Figs. 1-2 of Woodson. In the case of “74”, there is clearly a hollow portion with the filling layer “74” and a inner paper covering this layer such as “66”. If “92” is considered the filter, then “92” is the filling layer around the hollow portion and the inner wrapping paper may be considered wither “101” or “64” which is disposed around the filling layer).
In the alternate, claims 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1) in view of Branton (WO2013001288A1), as applied to claim 19 above, and further in view of Yamada (TW202137895A).
In the alternate regarding claims 20-21, Yamada teaches a smoking system involving an electrically heated article which includes activated carbon in the filer [pg. 16 of machine translation]. Yamada teaches that a D10 of the activated carbon is from 250-1200um, and the D50 is from 350-1500um, which is the exact same range as claimed by Applicant.
One of ordinary skill in the art would have found it obvious to modify the stick of Woodson so as to utilize the activated carbon D10 and D50 as suggested by Yamada. As Woodson is silent as to the specific characteristics of its activated carbon, one would have found it obvious to utilize an activated carbon known in the art as in Yamada, and one would have expected properties of improved filtration/adsorption for the smoking process [pg. 14-17 of machine translation]. It would have been obvious to choose any type of activated carbon, including the type suggested by Yamada, and thereby provide a heating stick suitable for filtering/adsorbing during use. Case law holds that the selection of a known material based on suitability for its intended use support prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045)". See MPEP 2144.07. Yamada details that having the D10/D50 values in this range results in desirable properties [pgs. 14-17 of machine translation], such that it would have been obvious to make the modification as such for the D10/D50 values.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1) in view of Branton (WO2013001288A1), as applied to claim 19 above, and further in view of Bonici (US2020/0329759A1).
Regarding claim 23, Woodson suggests filter segments with filter material, but Woodson does not explicitly suggest the density of the filter material of the filter segment. Bonici, tied to a filter for an aerosol-generating article, teaches that the filter preferably has a density between 0.11 g/cm3 to 0.2 g/cm3 [0036]. One of ordinary skill in the art would have found it obvious to modify the filter of Woodson to have a density as suggested by Bonici. One would have been motivated so as to balance weight, density, and RTD levels so as to provide a sufficient amount of aerosol delivered [0036].
Claims 19-23 are rejected under 35 U.S.C. 103 as being unpatentable over Yamada (TW202137895A) in view of Branton (WO2013001288A1).
Regarding claim 19, Yamada teaches a non-combustion heating stick (consumable as in Fig. 12) comprising:
A substrate including an aerosol source (smokeable substance “111” in Fig. 12),
A cooling segment downstream of the substrate in a longitudinal direction of the stick which generates an aerosol by cooling vapor (cooling segment “114”, as in Fig. 12, is located immediately downstream from the tobacco/smokeable substance portion. This portion cools the vapor from the substrate [pg. 40 of machine translation]),
A filter segment disposed downstream of the cooling segment (filter “115” is immediately downstream of the cooling section [Fig. 12]),
At least one of the group contains a porous adsorbent which is activated carbon (the filter may contain activated carbon [pg. 13, 16-17 of machine translation]).
Yamada does not explicitly describe the ratio of a pore volume of pores from 50-5000nm to a total pore volume being 15% or more. Branton teaches an activated carbon which is utilized with a smoking article such as a cigarette [Fig. 2], as the carbon material allows for excellent filtration from the vapor phase of the tobacco smoke [pg. 3]. Branton describes the activated carbon as having micropores of less than 2nm, mesopore between 2-50nm, and macropores as greater than 50nm, as understood in the art [pg. 6]. Branton’s activated carbon has preferably from 20% to 65% of the pore volume in macropores, that being pores greater than 50nm [pgs. 16-17]. Therefore, the pore volume of pores being 50nm or greater would be 20-65%, of the combined pore volume. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art would have found it obvious to modify the stick of Yamada so as to utilize the activated carbon pore volume characteristics as suggested by Branton. As Yamada is silent as to the pore volume ratios of the activated carbon, and as there would necessarily be pore volumes of some amount, it would have been obvious to use these known pore volume ratios of Branton. One would have expected properties of improved filtration/adsorption for the smoking process [pg. 3, 6, 18].
Regarding claim 20, modified Yamada makes obvious a D10 from 250um to 1200um (Yamada teaches that a D10 of the activated carbon is from 250-1200um [pg. 16 of machine translation]).
Regarding claim 21, modified Yamada makes obvious a D50 from 350-1500um (the D50 of the activated carbon is from 350-1500um [pg. 16 of machine translation]).
Regarding claim 22, modified Yamada makes obvious a filter segment with a center hole part with a hollow portion with a filling layer and an inner wrapping paper (see Fig. 12 of Yamada, “116” clearly has a hollow filter portion with a filling layer, and at least two wrapping papers are immediately located outside of the filling layer).
Regarding claim 23, modified Yamada makes obvious a filter segment with filter material with a density from 0.10 to 0.25 g/cm3 (the density of the suction filter is 0.10 to 0.25 g/cm3 [pg. 14 of machine translation]).
Claims 24-26, 28 are rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1) in view of Branton (WO2013001288A1).
Regarding claims 24, Woodson teaches a non-combustion-heating-type stick (electrically heated cigarette “23” as shown in Figs. 1-2 [title, abstract]), comprising:
a substrate including an aerosol source (tobacco rod “60” includes tobacco plug “80” [0030-0033]),
a filter segment disposed downstream of the cooling segment (as in Figs. 1-3, the filter segment may include free flow filter “74”, filter “92”, filter “150”, and mouthpiece filter plug “94” [0030-0034, 0048], and as in the Figs., these filters are clearly all downstream of the cooling segment “90”),
wherein at least one selected from the group consisting of the substrate and the filter segment contains a porous adsorbent wherein the porous adsorbent is activated carbon (the cigarette "23" may include one or more adsorbents to remove gas phase components form the tobacco smoke. The adsorbent may include one or more porous materials through which tobacco smoke can flow, and in a preferred embodiment the adsorbent is activated carbon. For example, the adsorbent can include activated carbon particles disposed in voids within the filter, or activated carbon particulates mixed into fibrous material or paper. Activated carbon can have different porous properties such as selected void size and total void volume [0041-0042]).
Woodson does not explicitly teach a pore volume of the activated carbon. Woodson does not limit the type of activated carbon utilized in its electronic cigarette. Branton teaches an activated carbon which is utilized with a smoking article such as a cigarette [Fig. 2], as the carbon material allows for excellent filtration from the vapor phase of the tobacco smoke [pg. 3]. Branton teaches that the activated carbon of the invention may have a pore volume of from 0.3 cm3/g to 1 cm3/g [pg. 17]. As Branton teaches that the carbon material of the invention would have such a pore volume, this would necessarily mean that the pores with a size from 50-5000nm would also have such a pore volume. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
One of ordinary skill in the art would have found it obvious to modify the stick of Woodson so as to utilize the activated carbon as suggested by Branton. As Woodson is silent as to the specific characteristics of its activated carbon, one would have found it obvious to utilize an activated carbon known in the art as in Branton, and one would have expected properties of improved filtration/adsorption for the smoking process [pg. 3, 6, 18]. It would have been obvious to choose any type of activated carbon, including the type suggested by Branton, and thereby provide a heating stick suitable for filtering/adsorbing during use. Case law holds that the selection of a known material based on suitability for its intended use support prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045)". See MPEP 2144.07.
Regarding claim 25, modified Woodson teaches a stick wherein the activated carbon has a BET specific surface area from 600-1800m2/g (as in the rejection of claim 24 above, Branton teaches an activated carbon which would have been obvious to apply to the stick of Woodson so as to obtain a working stick for adhering chemicals during use, for the rationale listed above. The BET surface area of the porous carbon materials is preferably between 500-1300 m2/g [pg. 16]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Regarding claim 26, modified Woodson teaches a stick further comprising a cooling segment disposed between the substrate and the filter segment which has a hollow cylindrical shape (the air gap/void “90” is considered to be the cooling segment, as in Woodson. As in Figs. 1-2, “90” is clearly located downstream of a substrate portion “80” [0033]. The air gap would necessarily result in a cooling of some amount from the tobacco section in the direction of the outlet, and it is noted that the air gap/void “90” is situated in the same manner as the cooling segment of the instant application Fig. 1. As in Fig. 1, the gap/void would clearly be arranged in a hollow cylindrical shape).
Regarding claim 28, modified Woodson teaches a stick wherein the substrate has a columnar shape with an aspect ratio (h/w) of 1 or more (the diameter may be 7.5-8.5mm [0038]. As in Figs. 1-3, the length of the substrate in the longitudinal direction is clearly greater than that of the width of the cross-section thereof. It being noted that Fig. 2 provides the same view of the substrate as instant Fig. 1. Moreover, it is held that guidance as provided by the figures is sufficient to enable public possession of an inventive concept. That is, an enabling picture may be used to reject claims directed to an article to include: anticipating claims if they clearly show the structure which is claimed. In re Mraz, 455 F.2d 1069, 173 USPQ 25 (CCPA 1972). And when the reference is a utility patent, it does not matter that the feature shown is unintended or unexplained in the specification. The drawings must be evaluated for what they reasonably disclose and suggest to one of ordinary skill in the art. In re Aslanian, 590 F.2d 911, 200 USPQ 500 (CCPA 1979), see MPEP 2125. One of ordinary skill in the art would have found the aspect ratio (h/w) from the Figures of Woodson to have a value of approximately 1.5).
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1) in view of Branton (WO2013001288A1), as applied to claim 24 above, and further in view of England (US2019/0116874A1).
Regarding claim 27, Woodson teaches that perforations comprising slits may be formed at locations so as to control the resistance to draw [0036]. Woodson details that the lengths and distribution of perforations may be adjusted as necessary [0094]. Woodson does not explicitly teach that the cooling segment includes perforations such that the air inflow rate is 10-90%. England teaches a cooling segment “307” which is present on the article “301” [Figs. 3-4], where the cooling segment defines an air gap so as to provide a thermal gradient along the length of the segment [0025]. A ventilation region “317” which comprises perforations into the segment are provided [Figs. 3-4, 0042-0047]. The ventilation holes/perforations are provided to aid with the cooling of the article [0042]. There may be 1-4 rows of ventilation holes, with each having 12-36 holes [0043]. The diameter of the holes may be .1-.5mm [0043].
One of ordinary skill in the art would have found it obvious to modify the cooling segment of Woodson to have the ventilation holes on the cooling segment with the dimensions as suggested by England. One would have been motivated so as improve the cooling of the device [0042-0047]. The instant specification details that an air inflow rate of 10-90vol% may be obtained when the number of perforations is in a range of 5-50 and the diameter of each perforation is in the range of 0.1mm to 0.5mm [0102 of PGPUB of instant application]. As England suggests a number of ventilation holes and a diameter of the holes that lies within the suggested range of the instant application, it would be reasonably expected that the air inflow rate of such an arrangement would also fall within 10-90vol%. When the claimed and prior art products of identical or substantially identical in structure or composition, a prima facie case of obviousness has been established”, see MPEP 2112.01 I. And further, "Products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present”, see MPEP 2112.01 II.
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1) in view of Branton (WO2013001288A1), as applied to claim 24 above, and further in view of Tsukamoto (WO2020084759A1, citing to English Equivalent US2021/0235761A1).
Regarding claim 29, Woodson does not detail the moisture content of its aerosol source. Tasukamoto teaches a smokeless cigarette system [Figs. 1-3, 0003], wherein the filling of the smoking article contains tobacco [0029]. The filling is made to have a moisture content preferably between 10% and 16% by weight [0029]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art would have found it obvious to modify the moisture content of the aerosol source to the range as suggested by Tsukamoto. One would have been motivated so as to prevent a stain on wrapping paper and improve a winding suitability [0029].
In the alternate, claims 24-26, 28 are rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1) in view of Yamada (TW202137895A).
In the alternate regarding claims 24, Woodson teaches a non-combustion-heating-type stick (electrically heated cigarette “23” as shown in Figs. 1-2 [title, abstract]), comprising:
a substrate including an aerosol source (tobacco rod “60” includes tobacco plug “80” [0030-0033]),
a filter segment disposed downstream of the cooling segment (as in Figs. 1-3, the filter segment may include free flow filter “74”, filter “92”, filter “150”, and mouthpiece filter plug “94” [0030-0034, 0048], and as in the Figs., these filters are clearly all downstream of the cooling segment “90”),
wherein at least one selected from the group consisting of the substrate and the filter segment contains a porous adsorbent wherein the porous adsorbent is activated carbon (the cigarette "23" may include one or more adsorbents to remove gas phase components form the tobacco smoke. The adsorbent may include one or more porous materials through which tobacco smoke can flow, and in a preferred embodiment the adsorbent is activated carbon. For example, the adsorbent can include activated carbon particles disposed in voids within the filter, or activated carbon particulates mixed into fibrous material or paper. Activated carbon can have different porous properties such as selected void size and total void volume [0041-0042]).
Woodson does not explicitly teach a pore volume of the activated carbon. Woodson does not limit the type of activated carbon utilized in its electronic cigarette. Yamada teaches a smoking system involving an electrically heated article which includes activated carbon in the filer [pg. 16 of machine translation]. The pore volume of the activated carbon may be from 400-800 uL/g, which is equivalent to 0.4 to 0.8 cm3/g [pgs. 16-17 of machine translation], such that this would clearly include the pores from 50-5000nm as all of the pores would have this size.
One of ordinary skill in the art would have found it obvious to modify the stick of Woodson so as to utilize the activated carbon as suggested by Yamada. As Woodson is silent as to the specific characteristics of its activated carbon, one would have found it obvious to utilize an activated carbon known in the art as in Yamada, and one would have expected properties of improved filtration/adsorption for the smoking process [pg. 14-17 of machine translation]. It would have been obvious to choose any type of activated carbon, including the type suggested by Yamada, and thereby provide a heating stick suitable for filtering/adsorbing during use. Case law holds that the selection of a known material based on suitability for its intended use support prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045)". See MPEP 2144.07.
Regarding claim 25, modified Woodson makes obvious a stick wherein the BET is 600-1800m2/g (The BET surface area is preferably from 1100-1600 m2/g [pg. 16 of machine translation of Yamada]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)).
Regarding claim 26, modified Woodson teaches a stick further comprising a cooling segment disposed between the substrate and the filter segment which has a hollow cylindrical shape (the air gap/void “90” is considered to be the cooling segment, as in Woodson. As in Figs. 1-2, “90” is clearly located downstream of a substrate portion “80” [0033]. The air gap would necessarily result in a cooling of some amount from the tobacco section in the direction of the outlet, and it is noted that the air gap/void “90” is situated in the same manner as the cooling segment of the instant application Fig. 1. As in Fig. 1, the gap/void would clearly be arranged in a hollow cylindrical shape).
Regarding claim 28, modified Woodson teaches a stick wherein the substrate has a columnar shape with an aspect ratio (h/w) of 1 or more (the diameter may be 7.5-8.5mm [0038]. As in Figs. 1-3, the length of the substrate in the longitudinal direction is clearly greater than that of the width of the cross-section thereof. It being noted that Fig. 2 provides the same view of the substrate as instant Fig. 1. Moreover, it is held that guidance as provided by the figures is sufficient to enable public possession of an inventive concept. That is, an enabling picture may be used to reject claims directed to an article to include: anticipating claims if they clearly show the structure which is claimed. In re Mraz, 455 F.2d 1069, 173 USPQ 25 (CCPA 1972). And when the reference is a utility patent, it does not matter that the feature shown is unintended or unexplained in the specification. The drawings must be evaluated for what they reasonably disclose and suggest to one of ordinary skill in the art. In re Aslanian, 590 F.2d 911, 200 USPQ 500 (CCPA 1979), see MPEP 2125. One of ordinary skill in the art would have found the aspect ratio (h/w) from the Figures of Woodson to have a value of approximately 1.5).
In the alternate, claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1) in view of Yamada (TW202137895A), as applied to claim 24 above, and further in view of England (US2019/0116874A1).
In the alternate regarding claim 27, Woodson teaches that perforations comprising slits may be formed at locations so as to control the resistance to draw [0036]. Woodson details that the lengths and distribution of perforations may be adjusted as necessary [0094]. Woodson does not explicitly teach that the cooling segment includes perforations such that the air inflow rate is 10-90%. England teaches a cooling segment “307” which is present on the article “301” [Figs. 3-4], where the cooling segment defines an air gap so as to provide a thermal gradient along the length of the segment [0025]. A ventilation region “317” which comprises perforations into the segment are provided [Figs. 3-4, 0042-0047]. The ventilation holes/perforations are provided to aid with the cooling of the article [0042]. There may be 1-4 rows of ventilation holes, with each having 12-36 holes [0043]. The diameter of the holes may be .1-.5mm [0043].
One of ordinary skill in the art would have found it obvious to modify the cooling segment of Woodson to have the ventilation holes on the cooling segment with the dimensions as suggested by England. One would have been motivated so as improve the cooling of the device [0042-0047]. The instant specification details that an air inflow rate of 10-90vol% may be obtained when the number of perforations is in a range of 5-50 and the diameter of each perforation is in the range of 0.1mm to 0.5mm [0102 of PGPUB of instant application]. As England suggests a number of ventilation holes and a diameter of the holes that lies within the suggested range of the instant application, it would be reasonably expected that the air inflow rate of such an arrangement would also fall within 10-90vol%. When the claimed and prior art products of identical or substantially identical in structure or composition, a prima facie case of obviousness has been established”, see MPEP 2112.01 I. And further, "Products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present”, see MPEP 2112.01 II.
In the alternate, claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Woodson (US2004/0129280A1) in view of Yamada (TW202137895A), as applied to claim 24 above, and further in view of Tsukamoto (WO2020084759A1, citing to English Equivalent US2021/0235761A1).
In the alternate regarding claim 29, Woodson does not detail the moisture content of its aerosol source. Tasukamoto teaches a smokeless cigarette system [Figs. 1-3, 0003], wherein the filling of the smoking article contains tobacco [0029]. The filling is made to have a moisture content preferably between 10% and 16% by weight [0029]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Conclusion
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/T.F.S./Examiner, Art Unit 1749
/KATELYN W SMITH/Supervisory Patent Examiner, Art Unit 1749
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