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 .
Response to Submission
Applicant’s submission filed on 2026 April 27 has been entered. Claims 1-3 and 9-28 are pending. Claims 10-20 and 25-28 remain withdrawn.
Claims 1-3, 9, and 21-24 are presently examined.
Claim Interpretation
Claims 1 and 21-22 recite product-by-process limitations. See MPEP 2113: a product is limited by structure that is positively recited and by structure that is implied by the process steps, not by the process steps themselves.
Claim Objections
Claims 1 and 21 are objected to because of the following informalities:
Claim 1:
In lines 5-7, the limitation “intact cannabis flowers from the at least one batch of cannabis biomass” is recited twice and should be recited once.
In lines 19-32, the limitation “wherein the combined tetrahydrocannabinolic acid crystals visibly and sparklingly coat the surface of the intact cannabis flowers to create the cannabis flower product, the coating formed by heating the intact cannabis flowers to a temperature between ambient and less than 100 °F to leach natural oils to the surface and adhering the crystals thereto by tumbling or shaking the heated flowers with the crystals; the coating consisting essentially of the tetrahydrocannabinolic acid crystals and reflecting incident light to inhibit oxidation, improve shelf life, and provide a sparkling appearance” is recited twice and should be recited once.
In lines 19-32, “the coating formed” should be “the coating being formed” or “the coating is formed”.
Claim 21:
In lines 5-7, the limitation “intact cannabis flowers from the at least one batch of cannabis biomass” is recited twice and should be recited once.
In lines 13-15, “the coating formed” should be “the coating being formed” or “the coating is formed”.
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 1-3 and 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over Thibodeau (US 20220007707 A1) as evidenced by “Concentrates” (Calypso) in view of Dramen (US 20190241537 A1), Walser (US 20190321425 A1), Fisher (WO 2021248235 A1), Boeckl (US 20170232210 A1), Verzura (US 20160106705 A1), and Glas (US 20220168235 A1).
Claims 1-2 and 23-24: Thibodeau teaches a cannabis flower product ([92-93], mash compound) having a crystal coating (THCa in crystal form) comprising:
at least one batch of cannabis biomass (cannabis) including cannabis flowers and leaves [135];
cannabis flowers ([92-93], cannabis flower) from the at least one batch of cannabis biomass (cannabis);
THCa (THCa) crystals (THCa in crystal form);
wherein the THCa crystals (THCa in crystal form) visibly and sparklingly (Calypso p. 2, “SUGAR”, THCa crystals sparkle) coat the surface of the intact cannabis flowers (cannabis flower) to create the cannabis flower product, the coating being formed by heating the intact cannabis flowers to a temperature above ambient ([92], the mash compound is warmed) to leach natural oils to the surface (warming liquefies cannabis oils which saturate through the mash compound) and adhering (coating) the crystals (THCa crystals) thereto;
the coating consisting essentially of the THCa crystals (THCa in crystal form) and reflecting incident light (the crystals are visible which requires reflecting light) to inhibit oxidation (the crystals cover the cannabis flower from oxygen to some extent), improve shelf life (the crystals cover the cannabis flower from oxygen to some extent), and provide a sparkling appearance of the cannabis flower product (Calypso p. 2, “SUGAR”, THCa crystals reflect light);
wherein the cannabis flower product ([92-93], mash compound) has a total cannabinoid content that is about 20% of the cannabis flower product mass (fig. 4 and [126], 19.2% THC + 1.2% CBD = 20.4% cannabinoids; [4-5], terpenes are not cannabinoids).
Thibodeau does not explicitly teach that the cannabis flowers are intact, the cannabis biomass includes trim, the THCa crystals have a purity of at least 95% THCa derived from trim and leaves of the at least one batch of cannabis biomass;
the THCa crystals are manufactured from the trim and leaves using a primary process that includes centrifugal separation to mechanically separate THCa crystals from the trim and leaves,
and a secondary process including solvent extraction of the trim and leaves to yield THCa crystals from the trim and leaves;
the heating of the cannabis flowers is done to less than 100 °F, and the crystals are adhered to the flowers by tumbling or shaking;
the THCa crystals have an average diameter of less than 100 microns and comprise less than 10% of the total cannabinoid content,
and have an average diameter of between 20-70 microns and comprise less than 2% of the total cannabinoid content.
Dramen teaches a cannabis product (title) comprising cannabis flowers that can be alternative of intact or ground [132], such that keeping the cannabis flowers intact enables a ritual and quality of consumption that is preferred by many users [51].
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 substitute Dramen’s intact cannabis flowers for Thibodeau’s ground cannabis flowers, because doing so would enable a ritual and quality of consumption that is preferred by many users.
Walser teaches a cannabis biomass comprising various parts of the cannabis plant such as flower, leaves, and trim [83], such that the cannabis biomass approximates a whole cannabis extract to deliver different and advantageous compositions to a user [83].
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 specify that Thibodeau’s cannabis biomass includes trim as taught by Walser, because doing so would enable the cannabis biomass to approximate a whole cannabis extract to deliver different and advantageous compositions to a user.
Fisher teaches purifying THCa crystals to 99% THCa (abstract) by a process that includes centrifugal separation ([43-45], centrifugal contacting) and solvent extraction of the trim and leaves to yield tetrahydrocannabinolic acid crystals (washing with a C5 – C8 hydrocarbon solvent), such that the THCa crystals are largely free of impurities (abstract).
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, Fisher’s THCa crystals of 99% purity manufactured by centrifuging and solvent-extracting, because doing so would yield a purer product that is largely free of impurities.
Boeckl teaches a THCa powder [31] crushed to a diameter of at least 10 microns, exemplified as 20-40 microns [27-28], such that the THCa powder is suitable for delivery to a user [27-28].
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 grind Thibodeau’s THCa crystals to between 20-40 microns as taught by Boeckl, because doing so is exemplified as making the THCa crystals suitable for delivery to the lungs or mouth of a user.
Verzura teaches warming cannabis flower to 106 °F [109], such that oil in the cannabis flower can be extracted and infused [109].
Verzura’s value is close to the claimed range. 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 using a 5.0 pH can infringe a patented purification process using a 6.0-9.0 pH. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The courts have held that prior art teaching a temperature of 100°C and an acid concentration of 10% renders obvious a claim reciting a temperature between 40°C and 80°C and an acid concentration between 25% and 70%.
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 a maximum temperature of Thibodeau’s warming step, Verzura’s 106 °F, which is close to 100 °F, because doing so is exemplified as extracting and infusing oil from within the cannabis flower.
Glas teaches 0.1mg trichome crystal powder [61] added to a 50mg cannabis product [58], such that consuming the cannabis product facilitates restful sleep in a user [67].
Thibodeau teaches that cannabis trichomes ([93], kief) and THCa crystals (THCa in crystal form) are equivalent for the purpose of making a mash product to yield expectation to succeed.
Applying Glas’s 0.1mg THCa crystal / 50mg cannabis product ratio to Thibodeau’s cannabis product that is about 20% cannabinoid (fig. 4) would yield (0.1mg THCa crystal / 50mg cannabis product) * (100% cannabis product / about 20% cannabinoid) = about 0.01mg THCa crystals / 1mg cannabinoid = about 1% THCa crystals relative to total cannabinoid content.
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 dose Thibodeau’s THCa crystals in a mass ratio of 0.1mg THCa:50mg cannabis mash as taught by Glas, which in Thibodeau yields about 1% THCa crystals relative to total cannabinoid content, because doing so would facilitate restful sleep in a user.
The recited steps of manufacturing the THCa crystals by centrifugally separating the THCa crystals from the trim and leaves and of tumbling or shaking the cannabis flowers to adhere the THCa crystals thereto do not differentiate the claimed cannabis flowers over Thibodeau’s cannabis flowers which are coated by THCa crystals [Thibodeau 93]. Modified Thibodeau teaches the claimed structure that is positively recited and the structure that is implied by the process steps. See MPEP 2113.
Claim 3: modified Thibodeau teaches the cannabis flower product as set forth in claim 1, wherein the cannabis flower product has a total cannabinoid content of between 20-30% (fig. 4 and [126], 19.2% THC + 1.2% CBD = 20.4% cannabinoids; [4-5], terpenes are not cannabinoids).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Thibodeau (US 20220007707 A1) as evidenced by “Concentrates” (Calypso) in view of Dramen (US 20190241537 A1), Walser (US 20190321425 A1), Fisher (WO 2021248235 A1), Boeckl (US 20170232210 A1), Verzura (US 20160106705 A1), and Glas (US 20220168235 A1) as applied to claim 1 in further view of Cranford (US 20170188623 A1).
Claim 9: modified Thibodeau teaches the cannabis flower product as set forth in claim 1, wherein the cannabis flower product is smokable [101].
Modified Thibodeau does not explicitly teach that the cannabis flower product is rolled into a cannabis cigarette.
Cranford teaches a cannabis flower product (fig. 2 and [76], #50) rolled into a standardized cannabis cigarette (100), such that cannabinoids can be delivered in a controlled manner [10].
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 roll Thibodeau’s cannabis flower product into a standardized cannabis cigarette as taught by Cranford, because doing so would enable cannabinoids to be delivered in a controlled manner.
Claims 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Thibodeau (US 20220007707 A1) as evidenced by “Concentrates” (Calypso) in view of Dramen (US 20190241537 A1), Walser (US 20190321425 A1), Fisher (WO 2021248235 A1), Verzura (US 20160106705 A1), and Glas (US 20220168235 A1).
Claim 21: Thibodeau teaches a cannabis flower product ([92-93], mash compound) having a crystal coating (THCA in crystal form) comprising:
at least one batch of cannabis biomass (cannabis) including cannabis flowers and leaves [135];
cannabis flowers ([92-93], cannabis flower) from the at least one batch of cannabis biomass (cannabis);
THCa (THCa) crystals (THCa in crystal form);
wherein the THCa crystals (THCa in crystal form) visibly and sparklingly (Calypso p. 2, “SUGAR”, THCa crystals sparkle) coat the surface of the intact cannabis flowers (cannabis flower) from the at least one batch of cannabis biomass to create the cannabis flower product (mash compound),
the coating being formed by heating the intact cannabis flowers to a temperature above ambient ([92], the mash compound is warmed) to leach natural oils to the surface (warming liquefies cannabis oils which saturate through the mash compound) and adhering (coating) the crystals (THCa crystals) thereto;
and wherein the cannabis flower product (mash compound) has a total cannabinoid content (fig. 4 and [126], 19.2% THC + 1.2% CBD = 20.4% cannabinoids; [4-5], terpenes are not cannabinoids).
Thibodeau does not explicitly teach that the cannabis flowers are intact, the cannabis biomass includes trim, the THCa crystals have a purity of at least 95% THCa derived from trim and leaves of the at least one batch of cannabis biomass;
the heating of the cannabis flowers is done to less than 100 °F;
and the THCa crystals comprise less than 10% of the total cannabinoid content.
Dramen teaches a cannabis product (title) comprising cannabis flowers that can be alternative of intact or ground [132], such that keeping the cannabis flowers intact enables a ritual and quality of consumption that is preferred by many users [51].
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 substitute Dramen’s intact cannabis flowers for Thibodeau’s ground cannabis flowers, because doing so would enable a ritual and quality of consumption that is preferred by many users.
Walser teaches a cannabis biomass comprising various parts of the cannabis plant such as flower, leaves, and trim [83], such that the cannabis biomass approximates a whole cannabis extract to deliver different and advantageous compositions to a user [83].
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 specify that Thibodeau’s cannabis biomass includes trim, because doing so would enable the cannabis biomass to approximate a whole cannabis extract to deliver different and advantageous compositions to a user.
Fisher teaches purifying THCa crystals to 99% THCa (abstract) by a process that includes centrifugal separation ([43-45], centrifugal contacting) and solvent extraction of the trim and leaves to yield tetrahydrocannabinolic acid crystals (washing with a C5 – C8 hydrocarbon solvent), such that the THCa crystals are largely free of impurities (abstract).
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, Fisher’s THCa crystals of 99% purity manufactured by centrifuging and solvent-extracting, because doing so would yield a purer product that is largely free of impurities.
Verzura teaches warming cannabis flower to 106 °F [109], such that oil in the cannabis flower can be extracted and infused [109].
Verzura’s value is close to the claimed range. 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 using a 5.0 pH can infringe a patented purification process using a 6.0-9.0 pH. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The courts have held that prior art teaching a temperature of 100°C and an acid concentration of 10% renders obvious a claim reciting a temperature between 40°C and 80°C and an acid concentration between 25% and 70%.
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 a maximum temperature of Thibodeau’s warming step, Verzura’s 106 °F, which is close to 100 °F, because doing so is exemplified as extracting and infusing oil from within the cannabis flower.
Glas teaches 0.1mg trichome crystal powder [61] added to a 50mg cannabis product [58], such that consuming the cannabis product facilitates restful sleep in a user [67].
Thibodeau teaches that cannabis trichomes ([93], kief) and THCa crystals (THCa in crystal form) are equivalent for the purpose of making a mash product to yield expectation to succeed.
Applying Glas’s 0.1mg THCa crystal / 50mg cannabis product ratio to Thibodeau’s cannabis product that is about 20% cannabinoid (fig. 4) would yield (0.1mg THCa crystal / 50mg cannabis product) * (100% cannabis product / about 20% cannabinoid) = about 0.01mg THCa crystals / 1mg cannabinoid = about 1% THCa crystals relative to total cannabinoid content.
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 dose Thibodeau’s THCa crystals in a mass ratio of 0.1mg THCa:50mg cannabis mash as taught by Glas, which in Thibodeau yields about 1% THCa crystals relative to total cannabinoid content, because doing so would facilitate restful sleep in a user.
The recited step of manufacturing the THCa crystals by centrifugally separating the THCa crystals from the trim and leaves does not differentiate the claimed cannabis flowers over Thibodeau’s cannabis flowers which are coated by THCa crystals [Thibodeau 93]. Modified Thibodeau teaches the claimed structure that is positively recited and the structure that is implied by the process steps. See MPEP 2113.
Claim 22: modified Thibodeau teaches the cannabis flower product of claim 21.
Modified Thibodeau does not explicitly teach that the THCa crystals and the cannabis flowers are derived from a single batch of cannabis biomass.
The recited process step of deriving THCa crystals and cannabis flowers from a single batch of cannabis biomass does not differentiate the THCa crystals and the cannabis flowers over modified Thibodeau’s THCa crystals and cannabis flowers. Modified Thibodeau teaches the claimed structure that is positively recited and the structure that is implied by the process steps. See MPEP 2113.
Response to Arguments
Applicant’s arguments of 2026 April 27 have been carefully considered but are not persuasive.
Applicant argues (p. 4, [2]) that Thibodeau does not teach intact flowers with a discrete, visible, sparkling THCa crystal coating formed by a dual-process closed-loop method and natural-oil-leach adhesion. However, Thibodeau does teach flowers ([92-93], cannabis flower) with a discrete, visible, sparkling (Calypso p. 2, “SUGAR”, THCa crystals sparkle) THCa crystal coating (THCa in crystal form) formed by natural-oil-leach adhesion ([21], the mash compound is warmed). Dramen renders obvious the intact form of the flowers, and Fisher renders obvious the dual-process closed-loop method. Furthermore, the dual-process closed-loop method step is a product-by-process limitation that does not differentiate the claimed herbage product over Thibodeau, absent evidence to the contrary, per MPEP 2113.
Applicant argues (p. 4, [3]) that Boeckl, Glas, Cranford, Walser, and Fisher address different technical problems and purposes than Thibodeau:
Boeckl and Glass address inhalation. However, Thibodeau’s herbage product is inhalable [Thibodaeu 101]. Claim 9 even recites that the herbage product is rolled into a cigarette.
Cranford addresses chopped material for cigarettes. However, Thibodeau’s herbage product is incorporated into a smokable product [Thibodaeu 101].
Walser and Fisher lack the intact-flower coating, same-batch dual-process, minimal contribution, and functional light-reflecting/shelf-life features. However, Thibodeau teaches an intact-flower coating and functional light-reflect/shelf life features. The same-batch aspect of the process does not differentiate the claimed coating over modified Thibodeau, absent evidence to the contrary, per MPEP 2113. The argued “minimal contribution” is not claimed and is unclear.
Applicant argues (p. 4, [4]) that the examiner's conclusion of obviousness is based upon improper hindsight reasoning. However, any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. So long as the judgement takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant argue improved properties (p. 4, [4]). However, modified Thibodeau teaches the positively-recited structure of the claims and is presumed to yield the argued visually pleasing and improved shelf life properties. See MPEP 2145(II): “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).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 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
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