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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2026 February 16 has been entered.
Claims 1-2, 5-13, 27, and 29 are pending.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1: under subsection c, “wherein a second coating consisting essentially of” should be “a second coating consisting essentially of”, “wherein a second coating consists essentially of”, or equivalent.
Appropriate correction is required.
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 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Thibodeau (US 20220007742 A1) in view of “How To Make MoonRocks” (Cannabis Now), “Hardening moon rocks” (Future 4200), Mayo (US 20200123125 A1), and Boeckl (US 20170232210 A1), as evidenced by Footen (WO 2022192473 A2).
Claim 1: Thibodeau teaches an herbage product (abstract) having a reflective coating ([100], THCa in crystal form) that sparkles (THCa crystals reflect light; [Footen 217], THCa crystals can be processed to become more shiny, so THCa crystals have an inherent baseline shine and sparkle) and improves herbage shelf life (THCa crystals block UV radiation which would improve shelf life to some extent) comprising:
a. herbage ([99], cannabis flower) having a shape;
b. a first coating (cannabis oil) of a cannabis extract on the herbage (cannabis flower) to form a layer to provide a moisture barrier (oil repels water) and mechanically preserve the shape of (the cannabis oil coats the cannabis flower) the herbage (cannabis flower);
c. a second coating ([100], THCa in crystal form) consisting essentially of purified Tetrahydrocannabinolic acid (THCa) crystals to improve shelf life by reducing absorption of light by (the THCa in crystal form is solid and absorbs some amount of light) the herbage (cannabis flower);
d. wherein the THCa crystals (THCa in crystal form) and the first coating (cannabis oil) cooperate to improve shelf life of the herbage (cannabis flower) by reflecting light to inhibit oxidation (the cannabis oil and the THCa crystals are both visible which requires reflecting light which would inhibit oxidation to some extent) of the herbage (cannabis flower) and by providing a moisture barrier (the cannabis oil repels water).
Thibodeau does not explicitly teach that the first coating includes greater than 90% Tetrahydrocannabinol (THC) to form a glass-like hardened layer that is non-sticky at room temperature, and that the second coating has a concentration of 90-99% Tetrahydrocannabinolic acid (THCa) and an average grain size between 0.05mm – 0.1mm.
Cannabis Now teaches an herbage product comprising cannabis buds, a first coating comprising 90% THC (0:05 timestamp) and forming a hardened layer on the dried herbage to mechanically preserve the shape of the herbage (0:23 timestamp and 0:34 timestamp), the hardened surface enabling handling and grinding of the herbage (0:34 timestamp), and a second coating comprising kief (0:18 timestamp), such that the second coating dries to enable handling of the herbage product (0:23 timestamp).
Thibodeau’s second coating can comprise equivalent alternatives of THCa crystals or kief [100] to yield expectation to succeed in applying Cannabis Now’s teachings to Thibodeau.
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Cannabis Now’s first coating at 90% THC is close to the instant first coating at greater than 90% THC. The courts have held that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). The courts have held that prior art teaching alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium renders obvious a claim reciting an alloy of 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium. “The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.” In re Lilienfeld, 67 F.2d 920, 924, 20 USPQ 53, 57 (CCPA 1933). The courts have held that prior art teaching an alkali cellulose containing 5-8% water renders obvious a claim reciting an alkali cellulose containing between about 13-20% water.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use, as Thibodeau’s first coating of generic concentration, Cannabis Now’s specific first coating of 90% THC such that the first coating forms a hardened layer at room temperature.
Future 4200 teaches an herbage product comprising a first coating of an extract and a second coating of a crystalline cannabinoid (p. 1, post #1 by user pr_at_ch, a moon rock coated in distillate and kief), wherein the first coating can comprise delta-8 THC that is glass-like and non-sticky at room temperature (p. 2, post #5 by user Capttripppp, D8 distillate can be glass-like at room temperature) or delta-9 THC that is glass-like and non-sticky at room temperature (p. 4, post #13 by user anon56994712, D9 distillate can be glass-like at room temperature), such that the herbage product can be hardened (p. 3, post #9 by user EscalatedExtractor, the final herbage product is hard as a rock; p. 5, post #18 by user thumper, the final herbage product is the shatteriest).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to use, as modified Thibodeau’s first coating with generic glassiness, Future 4200’s specific delta-8 THC or delta-9 THC such that the first coating forms a glass-like hardened layer which is non-sticky at room temperature, because doing so would stiffen the herbage product for a user.
Mayo teaches purifying THCa crystals to 95+% THCa [54-55], such that toxic impurities are removed [5], dosing is made easier [5], and the THCa crystals have an improved appearance [36].
Mayo’s second coating at 95+% THCa overlaps with the instant second coating at 90-99% THCa. The courts have held that a prima facie case of obviousness exists where the claimed ranges overlap or lie inside ranges disclosed by the prior art. 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). The courts have held that prior art teaching carbon monoxide concentrations of about 1-5% renders obvious a claim reciting carbon monoxide concentrations of more than 5%.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to purify Thibodeau’s THCa crystals of generic purity to Mayo’s 95+% purity, because doing so would remove toxic impurities, make dosing easier, and improve the THCa crystals’ appearance.
Boeckl teaches THCa powder [31] having an average grain size of 0.01-0.05mm [27], such that stability of the THCa is enhanced [27].
Boeckl’s THCa crystals at 0.01-0.05mm overlaps with the instant THCa crystals at 90-99% THCa. The courts have held that a prima facie case of obviousness exists where the claimed ranges overlap or lie inside ranges disclosed by the prior art. In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). The courts have held that prior art teaching a layer “not less than about 10 nm [i.e., 100 Angstroms]” renders obvious a claim reciting a layer between “50 to 100 Angstroms”. In re Bergen, 120 F.2d 329, 332, 49 USPQ 749, 751-52 (CCPA 1941). The courts have held that prior art renders obvious a claim reciting an overlapping endpoint, particularly when there is no showing of criticality of the claimed range.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to use, as Thibodeau’s generic THCa crystal size, Boeckl’s specific 0.01-0.05mm, because doing so would enhance the stability of the THCa.
Claim 2: modified Thibodeau teaches the herbage product as set forth in claim 1, wherein the herbage ([99], cannabis flower) is cannabis flower that is ground to a desired particle size to form a smokable product [17], and the crystals are visible in the ground cannabis flower ([100], “coated”).
“Desired particle size” is interpreted as “particle size which enables forming a smokable product”, consistent with [instant 20].
Claims 5-9 are rejected under 35 U.S.C. 103 as being unpatentable over Thibodeau (US 20220007742 A1) in view of “How To Make MoonRocks” (Cannabis Now), “Hardening moon rocks” (Future 4200), Mayo (US 20200123125 A1), and Boeckl (US 20170232210 A1), as evidenced by Footen (WO 2022192473 A2) and applied to claim 2 in further view of Lee (US 20060150991 A1).
Claims 5-9: modified Thibodeau teaches the herbage product as set forth in claim 2.
Modified Thibodeau does not explicitly teach that the ground herbage is packaged in rolling paper to form a cannabis cigarette,
wherein the rolling paper is transparent to reveal the crystalline cannabinoid through the rolling paper,
or that the cannabis cigarette has an open end,
or that the cannabis cigarette has two open ends.
Lee teaches ground herbage (fig. 6A and [109-110], #11) packaged in transparent rolling paper (4 and 6) to form a cigarette (10) having two open ends at which the herbage is visible (fig. 6A), such that the ground herbage is wound together and a customer can observe the interior of the cigarette [109].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to package modified Thibodeau’s herbage in rolling paper to form a cannabis cigarette as taught by Lee, wherein the rolling paper is transparent to reveal the crystalline cannabinoid through the rolling paper, wherein the cannabis cigarette has two open ends at which the crystalline cannabinoid are visible and coat the open ends, because doing so would wind the ground herbage together and enable a customer to observe the interior of the cigarette.
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Thibodeau (US 20220007742 A1) in view of “How To Make MoonRocks” (Cannabis Now), “Hardening moon rocks” (Future 4200), Mayo (US 20200123125 A1), and Boeckl (US 20170232210 A1), as evidenced by Footen (WO 2022192473 A2) and applied to claim 2 in further view of Xu (CN 109651878 A with reference made to machine translation).
Claims 10-11: modified Thibodeau teaches the herbage product as set forth in claim 2,
wherein the crystalline cannabinoid has an average particle size diameter of less than 0.3mm [Boeckl 27].
Modified Thibodeau does not explicitly teach that the ground herbage is packaged in a rolling paper impregnated with the crystalline cannabinoid to inhibit ultraviolet degradation of the ground herbage within the rolling paper and to sparkle.
Xu teaches tobacco paper for a cigarette comprising inlaid crystal that inhibits ultraviolet degradation of (the crystal absorbs some ultraviolet radiation) a ground herbage and sparkles (the crystals reflect some light), such that beauty and grade of the cigarettes are increased [5].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add modified Thibodeau’s crystalline cannabinoid to the rolling paper as taught by Xu, because doing so would increase beauty and grade of the cigarettes.
Claims 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Thibodeau (US 20220007742 A1) in view of “How To Make MoonRocks” (Cannabis Now), “Hardening moon rocks” (Future 4200), Mayo (US 20200123125 A1), and Boeckl (US 20170232210 A1), as evidenced by Footen (WO 2022192473 A2) and applied to claim 1 in further view of Newman (US 5556579 A).
Claims 12-13: modified Thibodeau teaches the herbage product as set forth in claim 1, wherein the herbage is cannabis flower in the form of trimmed buds ([3], the cannabis flower is harvested which requires trimming the flower from cannabis plants).
Modified Thibodeau does not explicitly teach that the herbage product is packaged in a glass jar,
or that the herbage product is packaged in glass jars presented in a merchandising display.
Newman teaches a fresh, consumable, merchandise item, such as tobacco, packaged in a glass jar (abstract).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add modified Thibodeau’s herbage product to Newman’s glass jars presented in a merchandising display, because doing so would be a simple combination of Thibodeau’s herbage product and Newman’s glass jars intended to store herbage products and would predictably display the herbage product.
Claims 27 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Thibodeau (US 20220007742 A1) in view of Pandolfino (WO 2021050682 A1), “How To Make MoonRocks” (Cannabis Now), “Hardening moon rocks” (Future 4200), Mayo (US 20200123125 A1), and “DIY Cannabis Moonrocks” (Dockside Cannabis), as evidenced by Footen (WO 2022192473 A2).
Claims 27 and 29: Thibodeau teaches an herbage product (abstract) having a reflective coating ([100], THCa in crystal form) that sparkles (the THCa crystals reflect light; [Footen 217], THCa crystals can be processed to become more shiny, so THCa crystals have an inherent baseline shine and sparkle) and improves herbage shelf life (the THCa crystals absorb UV radiation which would improve shelf life to some extent) comprising:
a. herbage ([99], cannabis flower) having a shape;
b. a first coating (cannabis oil) of a first cannabis plant extract on the herbage (cannabis flower), wherein the first coating is applied warm at a temperature higher than room temperature (the cannabis oil is warmed and then applied);
c. wherein the first coating (cannabis oil) cools to form a layer that coats the herbage (cannabis flower), holds the shape of (the cannabis oil coats the cannabis flower) the herbage (cannabis flower), and provides a moisture barrier (oil repels water);
d. a second coating ([100], THCa in crystal form) of a second cannabis plant extract consisting essentially of Tetrahydrocannabinolic acid (THCa) which forms crystals that reflect light (the crystals are visible and therefore reflect light), the THCa crystals are embedded in the first coating (cannabis oil) when the first coating is warm (the cannabis oil is warmed and then applied);
e. wherein the layer (cannabis oil) holds the crystals (THCa in crystal form), preserves the shape of (the cannabis oil coats the cannabis flower) the herbage product, and wherein the crystals reflect light (the crystals are visible and therefore reflect light) to inhibit oxidation and improve shelf life of (the crystals block UV radiation which would inhibit oxidation to some extent) the herbage product.
Thibodeau does not explicitly teach that the herbage has a moisture content of between 4-15%, that the first coating includes greater than 90% Tetrahydrocannabinol (THC), that the first coating forms a hardened layer that is non-sticky at room temperature, that the second coating has a concentration of 90-99% Tetrahydrocannabinolic acid (THCa), or that the first coating is applied at a temperature between 100 °F – 180 °F.
Pandolfino teaches an herbage product comprising herbage with a moisture content of between 12-14% [184] which is exemplified as ideal [184].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to use, as Thibodeau’s herbage with generic moisture content, Pandolfino’s herbage with 12-14% moisture content, because doing so is exemplified by Pandolfino as ideal.
Cannabis Now teaches an herbage product comprising cannabis buds, a first coating comprising 90% THC (0:05 timestamp) and forming a hardened layer on the dried herbage to mechanically preserve the shape of the herbage (0:23 timestamp and 0:34 timestamp), the hardened surface enabling handling and grinding of the herbage (0:34 timestamp), and a second coating comprising kief (0:18 timestamp), such that the second coating dries to enable handling of the herbage product (0:23 timestamp).
Thibodeau’s second coating can comprise equivalent alternatives of THCa crystals or kief [100] to yield expectation to succeed in applying Cannabis Now’s teachings to Thibodeau.
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Cannabis Now’s first coating at 90% THC is close to the instant first coating at greater than 90% THC. The courts have held that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). The courts have held that prior art teaching alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium renders obvious a claim reciting an alloy of 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium. “The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.” In re Lilienfeld, 67 F.2d 920, 924, 20 USPQ 53, 57 (CCPA 1933). The courts have held that prior art teaching an alkali cellulose containing 5-8% water renders obvious a claim reciting an alkali cellulose containing between about 13-20% water.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use, as Thibodeau’s first coating of generic concentration, Cannabis Now’s specific first coating of 90% THC such that the first coating forms a hardened layer at room temperature.
Future 4200 teaches an herbage product comprising a first coating of an extract and a second coating of a crystalline cannabinoid (p. 1, post #1 by user pr_at_ch, a moon rock coated in distillate and kief), wherein the first coating can comprise delta-8 THC that is glass-like and non-sticky at room temperature (p. 2, post #5 by user Capttripppp, D8 distillate can be glass-like at room temperature) or delta-9 THC that is glass-like and non-sticky at room temperature (p. 4, post #13 by user anon56994712, D9 distillate can be glass-like at room temperature), such that the herbage product can be hardened (p. 3, post #9 by user EscalatedExtractor, the final herbage product is hard as a rock; p. 5, post #18 by user thumper, the final herbage product is the shatteriest).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to use, as modified Thibodeau’s first coating with generic glassiness, Future 4200’s specific delta-8 THC or delta-9 THC such that the first coating forms a glass-like hardened layer which is non-sticky at room temperature, because doing so would stiffen the herbage product for a user.
Mayo teaches purifying THCa crystals to 95+% THCa [54-55], such that toxic impurities are removed [5], such that dosing is made easier [5], and such that the THCa crystals have an improved appearance [36].
Mayo’s second coating at 95+% THCa overlaps with the instant second coating at 90-99% THCa. The courts have held that a prima facie case of obviousness exists where the claimed ranges overlap or lie inside ranges disclosed by the prior art. 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). The courts have held that prior art teaching carbon monoxide concentrations of about 1-5% renders obvious a claim reciting carbon monoxide concentrations of more than 5%.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to use, as Thibodeau’s THCa crystals of generic purity, Mayo’s THCa crystals of 95+% purity, because doing so would remove toxic impurities, make dosing easier, and improve the THCa crystals’ appearance.
Dockside Cannabis teaches an herbage product (p. 1, [1], moonrock) comprising cannabis concentrate (p. 2, “BASIC SUPPLIES”, “Concentrate”) heated to around 185°F (p. 2, “BASIC SUPPLIES”, “Container of hot water…”; p. 3, step 2) and applied to herbage (p. 4, flower) and then receiving a second coating of kief (p. 5, step 6), such that the cannabis concentrate is made nice and loose before application (p. 4, step 4).
Thibodeau’s second coating can comprise equivalent alternatives of THCa crystals or kief [100] to yield expectation to succeed in applying Dockside Cannabis’ teachings to Thibodeau.
Dockside Cannabis’ first coating application temperature of 185 °F is close to the instant first coating application temperature of between 100 °F – 180 °F. The courts have held that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co., 520 U.S. 17, 41 USPQ2d 1865 (1997). The courts have held that a purification process at a pH of 5.0 could infringe a purification process at a pH of 6.0-9.0. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The courts have held that prior art teaching a process at 100 °C and 10% acid concentration renders obvious a claim reciting a process at 40 °C – 80 °C and 25% – 70% acid concentration.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use, as Thibodeau’s generic warm temperature, Dockside Cannabis’ 185 °F temperature, because doing so would enable the cannabis concentrate to be made nice and loose before application.
Response to Arguments
Applicant’s arguments of 2026 February 16 have been carefully considered but are not persuasive.
Applicant argues (p. 1, [3-5]) improved properties, e.g., superior shelf life, shape preservation, grindability, inhibiting oxidation. However, modified Thibodeau teaches the structure of amended claim 1 and is presumed to yield the argued properties. “The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.” Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). See MPEP 2145(II).
Applicant argues (p. 2-4, “C. Criticality and Unexpected Results”) that the instant first coating >90% THC and second coating 90-99% THCa are critical. Applicant’s arguments reiterate prior arguments of 2025 June 19 and are directed to the examiner’s response in the final rejection of 2025 December 1.
In general, showing criticality requires providing data and/or a sworn declaration, neither of which have been filed to date. Applicant is encouraged to review MPEP 716.
Arguing for unexpectedness to overcome an obviousness rejection requires each of three elements: the evidence must fairly compare with the teachings of the prior art, the evidence must be commensurate in scope with the claimed range, and the evidence must truly be unexpected. See MPEP 716.02 and its subsections.
Moreover, applicant bears the burden of establishing a nexus between the objective evidence of nonobviousness and the claimed invention. In re Huang, 100 F.3d 135, 140, 40 USPQ 1685, 1689 (Fed. Cir. 1996). The burden rests with applicant to establish results that are unexpected and significant. See MPEP 716.01.
With respect to the first coating THC concentration, [instant 12] cited by applicant (p. 3, [2]) discloses that THC concentration is important to enable a glass-like coating. However, ranges of THC concentrations over which a glass-like coating does or does not form are not shown in an objective manner. The record does not indicate, for example, that a first coating at 91% THC would form a glass-like coating, while a first coating at 90% THC would not form a glass-like coating. No nexus has been shown to connect greater than 90% THC concentration and applicant’s alleged superiority in forming a glass-like coating.
With respect to the second coating THCa concentration, [instant 14-16 and 31] cited by applicant (p. 3, [3]) disclose that generic THCa crystals can reflect light, enabling handling, and improve shelf life. However, ranges of THCa concentrations which do or do not reflect light, enable handling, and improve shelf life are not shown in an objective manner. The record does not indicate, for example, that a second coating at 90% THCa would improve shelf life, while a second coating at 89% THCa would not improve shelf life. No nexus has been shown to connect 90-99% THCa concentration and applicant’s alleged superiority of properties.
With respect to the first coating and the second coating together, [instant 15-16 and 19] cited by applicant (p. 4, [2-3]) disclose that the first coating and the second coating cooperate to enhance shelf life. However, ranges of first coating THC concentration and second coating THCa concentration which do or do not cooperate to enhance shelf life are not shown in an objective manner. The record does not indicate, for example, that changing either coating concentration would break the shelf life enhancement property. No nexus has been shown to connect the coating concentrations and applicant’s alleged superiority of properties.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Tobey C. Le whose telephone number is (703)756-5516. The examiner can normally be reached Mon-Thu 8:30-18:30 ET.
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/TOBEY C LE/Examiner, Art Unit 1747
/Michael H. Wilson/Supervisory Patent Examiner, Art Unit 1747