DETAILED ACTION
Status of Application
The Examiner acknowledges receipt of the arguments filed on 4/10/2026.
Claims 1, 4, 6-14, 16, 17 and 19 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s arguments filed 4/10/2026 regarding the rejection of claims 1, 4, 6-14, 16, 17 and 19 made by the Examiner under 35 USC 103 over Fletcher et al. (US 2017/0339907) in view of Schmidt et al. (US 2003/0017216) and Hernandez (Leafbuyer, https://www.leafbuyer.com/blog/how-to-grow-hemp-a-practical-guide-to-hemp-farming/, 14 pages, 2019) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 1/12/2026.
In regards to the 103 rejection, Applicant asserts the following:
A) Fletcher is directed to industrial hemp cultivars, not their production methods. Hernandez provides seeding rates for hemp grain production (20-40 lb/acre) and hemp fiber production (40-60 lb/acre), but is silent with a seeding rate for a method that includes cannabinoid production.
In response to A, the argument presumes that one of ordinary skill could not operate within the general framework of the prior art to arrive at a method for growing the cultivar taught by Fletcher. The Examiner takes the opposite view. Fletcher describes a hemp cultivar having stable cannabinoid profiles with high CBD and low THC content. Fletcher teaches that the plants are to be grown from seed at which point the female flowers/buds are harvested. As Fletcher is silent regarding the details of the cultivar planting dynamics, one of ordinary skill in the art would look to the prior art for guidance. Here, Hernandez is relied upon for its teaching that cannabis may be planted outdoor in row production where the seed are planted at a rate of between 20-60 lb/acre. Cannabis is known to be grown outdoors and one of ordinary skill in the art would seek guidance that could be useful in growing Fletcher’s cannabis cultivar in large quantities. Applicant’s argument that Hernandez’s cannabis production is for purposes dissimilar to that of Fletcher and thus would not be combinable together is not persuasive as the result is still the outdoor production of a cannabis cultivar grown according to methods known to yield success. The intention of Hernandez is not considered particularly significant because Hernandez is cited only to demonstrate that cannabis can be grown in a row and seeding rate which overlaps that claimed. The end result would be a method of growing cannabis. One would reasonably expect Hernandez to guide one of ordinary skill in the art as to how to grow Fletcher’s cultivar outdoors and in doing so enable Fletchers cultivar to be grown at scale. The use of a known technique (e.g. row crop production) for growing Fletcher’s cannabis cultivar to yield predictable results is supportive of obviousness. See MPEP 2143(D). As there appears to be nothing particularly surprising or unexpected about the row crop production and seeding rate as claimed, the claimed method remains obvious. Applicant’s argument is not found persuasive.
Maintained Rejections, of Record
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 4, 6-14, 16, 17 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fletcher et al. (US 2017/0339907; of record) in view of Schmidt et al. (US 2003/0017216; of record) and Hernandez (Leafbuyer, https://www.leafbuyer.com/blog/how-to-grow-hemp-a-practical-guide-to-hemp-farming/, 14 pages, 2019).
Fletcher describes an industrial hemp cannabis cultivar having stable cannabinoid profiles. Fletcher teaches that the female plants are responsible for cannabinoid synthesis (see [0007]). Fletcher teaches that their female cultivar possesses a THC content of less than 0.2% and a CBD content greater than 1% with 2.54% and 2.83% CBD content being specifically described (see abstract and Tables 2 and 4) (see instant claims 1, 4 and 6). The cultivar of Fletcher possesses a CBD:THC ratio of up to about 56:1 (see [0010]). Fletcher’s method provides ovules and pollens of plants (see [0037]) which would naturally occur as a result of the plant growing (see instant claim 1).
It is taught that the plants are allowed to grow (from seeds) and the flowers/buds and seeds are harvested when plants produce female buds (see [0015, 0079, 0083, 0086, 0088]) (see instant claim 1). Fletcher teaches that their cultivars may be subject to extraction (see [0012]) such as steam extraction to isolated the terpenoid compounds. Although Fletcher’s cultivar contains THC, the plant is cultivated in a way that reduces the content of THC such that the plants consistently and reproducible have nearly zero THC while having elevated CBD (see [0008]) (see instant claim 7). The plant having nearly zero THC is considered sufficiently close to zero to be considered obvious. See MPEP 2144.05(I). The reference is silent regarding the seed being feminized and so it is expected that it would not possess this property (see instant claim 1).
The cultivars described by Fletcher include NWG331 and NWG452 (see [0076] and [0080]) (see instant claims 16 and 17). NWG331 is described as having a medium height (e.g. 170-190 cm), middle third of plant characterized by medium internode length and medium branching (considered ‘reduced branching’ relative to high branching) (see [0078]) (see instant claims 10-14).
Regarding instant claim 19, the property of the plant variety having trichomes resistant to damage from physical contact, heat, light and/or oxygen, these are properties that would necessarily occur in the cultivars identified by the reference as the cultivars of the reference are the same to the cultivars being currently claimed, e.g. NG331, NWG452, and so the plants physical properties would be expected overlap, absent evidence otherwise.
Although Fletcher suggests using steam as an extraction vehicle, Fletcher fails to teach their extraction process as being capable of extracting CBD from the harvested plant material.
Schmidt is directed to the isolation of cannabinoid compounds wherein Cannabis plant matter, such as flowers, are harvested and subject to steam distillation (extraction) wherein the process enriches the cannabinoid fraction, e.g. CBD, in the extracted portion (see [0018]) (see instant claims 1 and 8). Thus, it would have been obvious to use steam distillation to enrich the cannabinoid components, e.g. CBD, of Fletchers CBD enriched cultivar with a reasonable expectation for success especially given that a) Fletcher describes using steam distillation to produce extracts of their Cannabis cultivars and b) Fletcher contemplates cannabinoid extracts of their cultivars.
Regarding the limitation that the extraction does not require THC separation, this would be expected from the cultivars taught by Fletcher as they are cultivated to contain essentially zero THC (see instant claim 9) thereby mitigating the need to perform any separation process.
Fletcher fails to teach growing the cannabis plants outdoors in a row crop production wherein the seeds are planted at a rate greater than 14 pounds per acre.
Hernandez teaches that cannabis can be planted outdoors such that the seeds are to be planted 0.75-1.25 inches deep into the soil in 6 to 7 inch rows (i.e. row crop production). The cannabis seeds may be planted at a rate of between 20-60 pounds per acre (see page 6) (which is greater than the 14 pounds/acer claimed). Modifying Fletcher’s method such that the cannabis seeds were a) planted outdoors and b) planted at a rate greater than 14 pounds per acre would have been obvious as the location of growing the plants would be an obvious selection as would be the planting rate are known and optimizable parameter based on the needs/desires of the grower.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Conclusion
THIS ACTION IS MADE FINAL. 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 extension fee 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 KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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