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 .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 03/17/2026 has been entered.
Claims 1 and 5-17 are pending.
Claims 8-17 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected groups and species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 01/29/2025.
Claims 1 and 13 are currently amended.
Claims 2-4 are cancelled herein.
Claims 1 and 5-7 are currently under consideration to the extent that they read upon Applicant’s elected species.
Withdrawn Rejections and/or Objections
The rejection of claim(s) 2-4 under 35 U.S.C. 103 as being unpatentable over IC MAG is withdrawn in view of Applicant’s cancellation of said claims.
Rejections Maintained and Made Again in view of Applicant’s Amendments
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.
Claim(s) 1 and 5-7 (all claims currently under consideration) is/are rejected under 35 U.S.C. 103 as being unpatentable over IC MAG.
IC MAG teaches a mixture of 1 ¾ cup coconut oil being combined with ¼ cup (4 Tbsp) of lecithin (see entire document, for instance, page 1). IC MAG also teaches that one can use pure oil or clarified butter (ghee) (see entire document, for instance, page 6).
IC MAG, while exemplifying coconut oil and lecithin (in a ratio of 7:1), and while teaching that one can utilize pure oil or clarified butter, does not provide an example utilizing both clarified butter and coconut oil.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention, to utilize clarified butter in combination with the coconut oil of IC MAG. One would have been motivated to do so in a ratio of 1:1 since IC MAG teaches that one can utilize pure oil or clarified butter for the process. There would be a reasonable expectation of success since the prior art teaches that either pure oil or clarified butter can be utilized.
It further would have been obvious to one of ordinary skill in the art to optimize the amount of the lecithin in the composition. One would have been motivated to lower the amount of lecithin in order to achieve the desired emulsification of the composition. It is noted that MPEP 2144.05 states: "Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).”
Response to Arguments and Declaration
Applicant argues in the Remarks filed 03/17/2026 that the declaration provided by the inventor establishes the criticality of the 1:1 ratio of the coconut oil and clarified butter. Applicant’s argument and declaration are not found persuasive. Specifically, Applicant asserts in the declaration that they have demonstrated that a 1:1 ratio is superior a 2:1 or 1:2 ration of clarified butter and coconut oil. However, the data does not support the assertion. First, the results for the three trials, the 1:1, 1:2, and 2:1 are as follows:
Coconut oil : clarified butter
%
mg/g
2:1
0.155
1.547
1:1
0.167
1.675
1:2
0.161
1.615
A critical aspect of the analysis is the fine print beneath the charts in the declaration the charts all comprise the following note: “Following USDA Guidelines on uncertainty, Altitude Consulting’s uncertainty is calculated to be +/-5% for all cannabinoids using a coverage factor of 2 (95% confidence interval)” (Emphasis added). This is particular germane since when we at the +/- 5% to the numbers, they overlap as seen below:
Coconut oil : clarified butter
-5%
%
+5%
-5%
mg/g
+5%
2:1
0.14725
0.155
0.16275
1.46965
1.547
1.62435
1:1
0.15865
0.167
0.17535
1.59125
1.675
1.75875
1:2
0.15295
0.161
0.16905
1.53425
1.615
1.69575
As can be seen from the above table, when considering the uncertainty, the ranges significantly overlap, and therefore, the data does not support a finding of non-obviousness.
For at least the reasons, Applicant’s arguments and declaration are not found persuasive and the rejection is maintained.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TREVOR M LOVE whose telephone number is (571)270-5259. The examiner can normally be reached M-F typically 6:30-3.
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/TREVOR LOVE/Primary Examiner, Art Unit 1611