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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/14/2025 has been entered.
Claims Status
Claims 6, 13, and 18-19 are cancelled.
Claims 1-5, 7-12, 14-17 and 20-22 remain pending and stand rejected.
Response to Arguments
I. Applicant’s arguments with respect to the rejection under 35 USC 101 have been fully considered but are not persuasive.
The Examiner initially acknowledges Applicant’s citations on pages 10-11 of the Remarks filed 10/14/2025 in support of Applicant’s assertion that the claimed invention now recites a particular treatment or prophylaxis for a medical condition. Although the Examiner appreciates these remarks and agrees that the claimed invention reflects treating a medical condition, the Examiner disagrees that the claimed invention manifests a particular treatment or prophylaxis for a medical condition.
As written, the claim 1 culminates in the step of administering the different cannabis product to the user for treatment of at least one of pain, stress level, or lack of sleep. Similarly, claim 17 culminates in whereby the user consumes the different cannabis product for treatment of at least one of pain, stress level, or lack of sleep. The Examiner does not disagree that the claimed invention reflects the intent to treat a condition such as pain, stress or lack of sleep, but does refute the proposition that the treatment is “particular” in nature. The noted limitations of claim 1 and 17 are ancillary to the overall procedure for recommending cannabis products. While Applicant points to Classen Immunotherapies, the Examiner draws Applicant’s attention to the examples of limitations that the courts have described as merely indicating a field of use or technological environment in which to apply a judicial exception, including:
• i. A step of administering a drug providing 6-thioguanine to patients with an immune-mediated gastrointestinal disorder, because limiting drug administration to this patient population did no more than simply refer to the relevant pre-existing audience of doctors who used thiopurine drugs to treat patients suffering from autoimmune disorders, Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 78, 101 USPQ2d 1961, 1968 (2012);
Furthermore, in order to qualify as a “treatment” or “prophylaxis” limitation for purposes of this consideration, the claim limitation in question must affirmatively recite an action that effects a particular treatment or prophylaxis for a disease or medical condition. Neither the claims nor the specification provide a particular manner of administering the cannabis product. Conversely, the claim appears to recite the abstract idea of treating a user by recommending a cannabis product, and effectively administering any suitable product to the user to treat any one of pain, stress, or lack of sleep. This administration step (and similar consuming step of claim 17) is not particular, and is instead merely instructions to “apply” the exception in a generic way. Similarly, administering the different cannabis product to the user for treatment of at least one of pain, stress level, or lack of sleep represents an insignificant application, is akin to cutting hair after first determining the hair style, In re Brown, 645 Fed. App'x 1014, 1016-1017 (Fed. Cir. 2016) (non-precedential). That is, as Brown insignificantly performed cutting after assigning a hair design, the claimed invention “administers” (or consumes) the cannabis product after it has been recommended.
Concerning Applicant’s arguments with respect to a trained machine learning model and utilizing a neural network, the Examiner disagrees. Both the claims and the specification set forth the training and use of the machine learning model and/or neural network at a high level of generality while also disclosing the use of many known techniques (e.g., Nearest Neighbor or Brute Force algorithms, Minkowski metric – see Specification: 0055-0057) in implementing the training and selection process via the machine learning model. In turn, the improvement is manifested only in the abstract idea of treating a user’s pain, stress level, and/or lack of sleep by recommending appropriate cannabis products to the user, rather than to the field of machine learning or neural networks, or with a particular treatment or prophylaxis for a medical condition.
With respect to Example 39, the Examiner holds this comparison inapposite. Whereas the claims of Example 39 set forth a multi-stage training processing including the application of one or more transformations to create a modified set of digital facial images, resulting in an improve neural network for facial detection. Example 39 specifically identified the problem with prior art methods as suffering “from an inability to robustly detect human faces in images where there are shifts, distortions, and variations in scale and rotation of the face pattern in the image”. No such problem is described by the current application, nor does the application provide evidence of such a multi-stage process that improves a field such as digital facial recognition. To the contrary, the utilization of training and machine learning models in the claimed invention is utilized to improve about the abstract decision-making process for treatment of a user by recommending appropriate cannabis products based on effectiveness and feedback. This is an abstract idea based solution, and parallels the fact pattern employed in Recentive Analytics, Inc v. Fox Corp (Fed Cir, 2023-2437, 4/18/2025).
More specifically, the claims at issue claim the use of machine learning models and training for the generation of recommended cannabis products for the treatment of pain, stress or lack of sleep. The claims are directed to the abstract idea of using generic machine learning techniques in a particular environment. The mere requirement that the model (or neural network) be iteratively trained does not represent a technological improvement. Iterative training using selected training material (e.g., consumption data, feedback) are incident to the very nature of machine learning. Other that describing at a high level “training”, neither the claims nor the specification delineates steps through which the machine learning technology achieves an improvement to the functioning of the computer or another technology or technical field (such as machine learning). Considered individually or as a whole, they amount to nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware (or, merely uses a computer as a tool to perform an abstract idea).
Moreover, if it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Although the specification need not explicitly set forth the improvement, it must describe the invention such that the improvement would be apparent to one of ordinary skill in the art. Conversely, if the specification explicitly sets forth an improvement but in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine the claim improves technology (see MPEP 2106.05(a); MPEP 2106.04(d)(1)).
Applicant’s specification does not provide the requisite detail necessary such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement to the field of machine learning or neural networks. At best, Applicant’s invention leverages admittedly known techniques (see again: 0055-0057) to perform training using selected training material (e.g., consumption data, feedback).
Lastly, Applicant contends that the Examiner has failed to provide factual evidence addressing Berkheimer. The Examiner disagrees, and points specifically to the previous rejection, as well as that updated below. As referred to both previously and below, MPEP 2106.05(d)(II) outlines various computer functions that the courts have recognized as well‐understood, routine, and conventional functions. Most notably, the Examiner pointed out that the claimed invention utilized receiving or transmitting data over a network, storing and retrieving information in memory, and presenting offers. In light of the creation of a vector and a matrix, the Examiner has also added performing repetitive calculations. As these operations have been expressly noted by the courts, the Examiner has indeed provided factual evidence to the Examiner’s findings. Berkheimer is thereby satisfied.
Accordingly, the claims remain rejected under 35 USC 101.
Claim Interpretation - 35 USC § 112(f)
[Note: this is not a rejection]
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
Claim 17:
a user profiler that collects data…;
a cannabis product delivery system that provides…
The underlined terms above represent generic placeholders that are coupled to functional language using the transition word “that”, and do not recite sufficient structure. The Examiner further reiterates the interpretation of strain curator set forth in the Final Action mailed 7/16/2025 (see: Response to Arguments/Amendment).
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. A review of the specification reveals the following:
0089: Those skilled in the art may further appreciate that the various illustrative logical blocks, modules, circuits, and algorithm steps described in connection with the configurations disclosed herein may be implemented as electronic hardware, computer software, or combinations of both. To clearly illustrate this interchangeability of hardware and software, various illustrative components, blocks, modules, circuits, and steps have been described above generally in terms of their functionality. Whether such functionality is implemented as hardware or software depends upon the particular application and design constraints imposed on the overall system.
Per MPEP 2181(II)(B):
Often the supporting disclosure for a computer-implemented invention discusses the implementation of the functionality of the invention through hardware, software, or a combination of both. In this situation, a question can arise as to which mode of implementation supports the means-plus-function limitation. The language of 35 U.S.C. 112(f) requires that the recited “means” for performing the specified function shall be construed to cover the corresponding “structure or material” described in the specification and equivalents thereof. Therefore, by choosing to use a means-plus-function limitation and invoke 35 U.S.C. 112(f) applicant limits that claim limitation to the disclosed structure, i.e., implementation by hardware or the combination of hardware and software, and equivalents thereof. Therefore, the examiner should not construe the limitation as covering pure software implementation.
In accordance with the above, the limitations indicated above invoke mean-plus-function interpretation and have been interpreted as hardware or the combination of hardware and software, and equivalents thereof. “Hardware” is understood as any type of general-purpose hardware – e.g., processors, memory, or the like (e.g., 0085-0087).
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Interpretation – Claim Terms
The following terms have been interpreted as follows:
Package: a combination of products (see 0033), such as two or more products combined for shipping
Machine learning model: one or more algorithm(s) that can be implemented, e.g., by strain curator (see 0032, 0042)
Administer: the term is not used or defined by the specification; however, to administer is defined as “to provide or apply” (https://www.merriam-webster.com/dictionary/administer), or “to give (a drug, medicine, or treatment) to someone” (https://www.britannica.com/dictionary/administer). For examination purposes, administer is understood as giving or providing (e.g., the different cannabis product) to the user.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 17 and 20-22 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 17, claim 17 recites “whereby the user consumes the different cannabis product for treatment of at least one of pain, stress level, or lack of sleep”
While other limitations that use the active tense are understood as setting forth particular functions of the claimed system, the limitation whereby the user consumes the different cannabis product for treatment of at least one of pain, stress level, or lack of sleep recites the active performance of a method step by a human user within the system claim. That is, the emphasized limitation a claim recites the specific actions or functions performed by the user rather than limitations which focus on the capabilities of the system.
A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. (See MPEP 2173.05(p)).
Claims 20-22 depend from claim 17 are rejected therewith.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-5, 7-12, 14-17 and 20-22 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (abstract idea) without significantly more.
Claims 1-5, 7-12, and 14-16
Regarding claims 1-5, 7-12, and 14-16, under Step 2A claims 1-5, 7-12, and 14-16 recite a judicial exception (abstract idea) that is not integrated into a practical application and does not provide significantly more.
Under Step 2A (prong 1), and taking claim 1 as representative of claims 1-5, 7-12 and 14-16, claim 1 recites:
A method of treating a user’s pain, stress level, and/or lack of sleep with a cannabis product comprising:
clustering the collected user data into a group with user data from other users to create a user profile;
receiving an indication of a treatment reason for consuming the cannabis product, the treatment reason including at least one of treatment of pain, stress level, or lack of sleep;
creating a user vector that captures the user's profile relative to a predetermined number of unique properties of available strains of cannabis product,
creating a library matrix of strains of cannabis product that includes the available strains of cannabis product and features that associate each strain of cannabis product with its properties,
generate a recommendation of a cannabis product for the user profile for the indicated reason for consuming the cannabis product, the recommendation including a ranked list of strains of cannabis product that most closely match the user vector for the indicated treatment reason for consuming the cannabis product;
creating a package of cannabis products based on the user profile, the package of cannabis products including at least one of the strains of cannabis product in the ranked list of strains;
providing the package of cannabis products to the user;
processing the pre-consumption and post-consumption video data of the user to measure tetrahydrocannabinol effectiveness of the selected strain of the cannabis product for the indicated treatment reasons for consuming the cannabis product
collecting feedback data from the user regarding medical effectiveness of treatment by the selected strain of cannabis product for the indicated treatment reasons for consuming the cannabis product; and,
generate a recommendation of different cannabis product for the user profile that more closely matches the user vector for the indicated treatment reason for consuming the cannabis product.
These limitations recite ‘certain methods of organizing human activity’, such as by reciting Managing Personal Behavior or Relationships or Interactions Between People (see: MPEP 2106.04(a)(2)(II)(C)). This is because claim 1 sets forth or describes the process for treating a user’s pain, stress level, and/or lack of sleep by recommending cannabis products to the user, which represents managing personal behavior or relationships or interactions between people. Notably, the claimed invention is similar to the process that a neurologist should follow when testing a patient for nervous system malfunctions, In re Meyer, 688 F.2d 789, 791-93, 215 USPQ 193, 194-96 (CCPA 1982), which is a further example of managing personal behavior (see: MPEP 2106.04(a)(2)(C)(iii)).
Alternatively, claim 1 can also be understood to recite limitations that set forth or describe “mental processes” that are performable in the human mind, or by pen and paper. This is because at least certain limitations of claim 1 set forth or describe at least observations or evaluations can be accomplished in the human mind or using a physical aid such as pen and paper (see: MPEP 2106.04(a)(2)(III)), such as:
generate a recommendation of a cannabis product for the user profile for the indicated reason for consuming the cannabis product, the recommendation including a ranked list of strains of cannabis product that most closely match the user vector for the indicated treatment reason for consuming the cannabis product;
processing the pre-consumption and post-consumption video data of the user to measure tetrahydrocannabinol effectiveness of the selected strain of the cannabis product for the indicated treatment reasons for consuming the cannabis product
collecting feedback data from the user regarding medical effectiveness of treatment by the selected strain of cannabis product for the indicated treatment reasons for consuming the cannabis product; and,
generate a recommendation of different cannabis product for the user profile that more closely matches the user vector for the indicated treatment reason for consuming the cannabis product.
Notably, the courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation, nor do the courts distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer.
Accordingly, under step 2A (prong 1) claim 1 also recites an abstract idea because claim 1 recites limitations that fall within the “Mental processes” grouping of abstract ideas.
Under Step 2A (prong 2), the abstract idea of claims 1-5, 7-12 and 14-16 is not integrated into a practical application.
Returning to representative claim 1, the Examiner acknowledges that claim 1 arguably sets forth additional elements such as:
collecting data from the user regarding at least one of the user's lifestyle, preferences, medical conditions, or a video of the user performing a series of movements,
using the user vector and the library matrix of cannabis product to train a machine learning model,
capturing pre-consumption and post-consumption video data of the user for a selected strain of cannabis product,
a neural network,
providing the measured tetrahydrocannabinol effectiveness of the selected strain of the cannabis product for the indicated treatment reason for consuming the cannabis product to the machine learning model,
providing the feedback data to the machine learning model,
using the tetrahydrocannabinol effectiveness and feedback data to train the machine learning model, and,
administering the different cannabis product to the user for treatment of at least one of pain, stress level, or lack of sleep.
Although reciting these additional elements, taken alone or in combination these elements are not sufficient to integrate the abstract idea into a practical application. This is because the additional elements of claim 1 are recited at a high level of generality (i.e. as generic computing hardware) such that they amount to nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware (or, merely uses a computer as a tool to perform an abstract idea). The broad and generalized utilization and training of a machine learning model, and use of a neural network, is nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware. The claims do not provide any restriction on the manner in which the training is to occur, instead merely specifying the data to be used.
Secondly, the additional elements are insufficient to integrate the abstract idea into a practical application because the claim fails to (i) reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, (ii) implement the judicial exception with, or use the judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, (iii) effect a transformation or reduction of a particular article to a different state or thing, or (iv) applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
Further, the additional elements do no more than generally link the use of a judicial exception to a particular technological environment or field of use (such as the Internet or computing networks). With respect to administering the different cannabis product to the user for treatment of at least one of pain, stress level, or lack of sleep, this limitation is ancillary to the overall procedure for recommending cannabis products. Examples of limitations that the courts have described as merely indicating a field of use or technological environment in which to apply a judicial exception include:
• i. A step of administering a drug providing 6-thioguanine to patients with an immune-mediated gastrointestinal disorder, because limiting drug administration to this patient population did no more than simply refer to the relevant pre-existing audience of doctors who used thiopurine drugs to treat patients suffering from autoimmune disorders, Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 78, 101 USPQ2d 1961, 1968 (2012);
Furthermore, in order to qualify as a “treatment” or “prophylaxis” limitation for purposes of this consideration, the claim limitation in question must affirmatively recite an action that effects a particular treatment or prophylaxis for a disease or medical condition. Neither the claims nor the specification provide a particular manner of administering the cannabis product. Conversely, the claim appears to recite the abstract idea of treating a user by recommending a cannabis product, thus effectively administering any suitable product to the user to treat any one of pain, stress, or lack of sleep. This administration step is not particular, and is instead merely instructions to “apply” the exception in a generic way. Similarly, administering the different cannabis product to the user for treatment of at least one of pain, stress level, or lack of sleep represents an insignificant application, as akin to cutting hair after first determining the hair style, In re Brown, 645 Fed. App'x 1014, 1016-1017 (Fed. Cir. 2016) (non-precedential). That is, as Brown insignificantly performed cutting after assigning a hair design, the claimed invention “administers” the cannabis product after it has been recommended.
Lastly, the steps of collecting data from the user regarding at least one of the user's lifestyle, preferences, medical conditions, or a video of the user performing a series of movements, and, capturing pre-consumption and post-consumption video data of the user for a selected strain of cannabis product represent little more than extra-solution activity (e.g. data gathering and output) that contributes only nominally or insignificantly to the execution of the claimed method (see: MPEP 2106.05(g)).
In view of the above, under Step 2A (prong 2), the additional elements of claim 1 do not integrate the recited exception into a practical application.
Under Step 2B, examiners should evaluate additional elements individually and in combination to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself). In this case, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Regarding claim 1, taken individually or as a whole the additional elements of claim 1 do not provide an inventive concept (i.e. they do not amount to “significantly more” than the exception itself). As discussed above with respect to the integration of the abstract idea into a practical application, the additional elements used to perform the claimed process amount to no more than the mere instructions to apply the exception using a generic computer and/or no more than a general link to a technological environment.
Furthermore, the additional elements fail to provide significantly more also because the claim (at best) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. For example, the additional elements of claim 1 utilize operations the courts have held to be well-understood, routine, and conventional (see: MPEP 2106.05(d)(II)), including at least:
receiving or transmitting data over a network,
storing and retrieving information in memory,
performing repetitive calculations,
presenting offers.
Even considered as an ordered combination (as a whole), the additional elements of claim 1 do not add anything further than when they are considered individually.
In view of the above, representative claim 1 does not provide an inventive concept (“significantly more”) under Step 2B, and is therefore ineligible for patenting.
Regarding dependent claims 2-5 and 7-12, and 14-16, dependent claims 2-5 and 7-12, and 14-16 recite more complexities descriptive of the abstract idea itself, and at least inherit the abstract idea of claims 1 and 17. As such, claims 2-5 and 7-12, and 14-16 are understood to recite an abstract idea under step 2A (prong 1) for at least similar reasons as discussed above.
Under prong 2 of step 2A, the additional elements of dependent claims 2-5, 7-12, and 14-16 also do not integrate the abstract idea into a practical application, considered both individually or as a whole. More specifically, claims 2-5, 7-12 and 14-16 rely on similar additional elements recited at a high level of generality as discussed with respect to claim 1. Further additional elements such as a server (claims 5, 8), a deep learning system (claim 10), and a trained neural network (claim 14) are also recited only at a high level of generality (i.e. as generic computing hardware) such that they amount to nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware (or, merely uses a computer as a tool to perform an abstract idea). Further, the additional elements do no more than generally link the use of a judicial exception to a particular technological environment or field of use (such as the Internet or computing networks).
Lastly, under step 2B, claims 2-5, 7-12 and 14-16 also fail to result in “significantly more” than the abstract idea under step 2B. This is again because the claims merely apply the exception on generic computing hardware, generally link the exception to a technological environment, and append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.
Even when viewed as an ordered combination (as a whole), the additional elements of the dependent claims do not add anything further than when they are considered individually.
In view of the above, claims 2-5, 7-12, and 14-16 do not provide an inventive concept (“significantly more”) under Step 2B, and are therefore ineligible for patenting.
Claims 17 and 20-22
Regarding claims 17 and 20-22, under Step 2A claims 17 and 20-22 recite a judicial exception (abstract idea) that is not integrated into a practical application and does not provide significantly more.
Under Step 2A (prong 1), and taking claim 17 as representative of claims 17 and 20-22, claim 17 recites:
A system for treating a user’s pain, stress level and/or lack of sleep,
collects data from the user regarding at least one of the user's lifestyle, preferences, medical conditions, or a video of the user performing a series of movements and clusters the collected user data into a group with user data from other users to create a user profile, and receives an indication of a treatment reason for consuming the cannabis product, the treatment reason including at least one of pain, stress level, or lack of sleep;
creating a user vector that captures the user's profile relative to a predetermined number of unique properties of available strains of cannabis product,
creating a library matrix of strains of cannabis product that includes the available strains of cannabis product and features that associate each strain of cannabis product with its properties,
to generate a recommendation of a cannabis product for the user profile for the indicated treatment reason for consuming the cannabis product, the recommendation including a ranked list of strains of cannabis product that most closely match the user vector for the indicated treatment reasons for consuming the cannabis product,
creating a package of cannabis products including cannabis products recommended for the user based on the user profile, the package of cannabis products including at least one of the strains of cannabis products in the ranked list of strains;
processes pre-consumption and post-consumption video data captured from the user for a strain of cannabis product selected from the package of cannabis products to measure tetrahydrocannabinol effectiveness of the selected strain of the cannabis product for the indicated treatment reason for consuming the cannabis product;
to generate a recommendation of a different cannabis product for the user profile that more closely matches the user vector for the indicated treatment reason for consuming the cannabis product;
provides a package including the different cannabis product to the user whereby the user consumes the different cannabis product for treatment of at least one of pain, stress level, or lack of sleep.
These limitations recite ‘certain methods of organizing human activity’, such as by reciting Managing Personal Behavior or Relationships or Interactions Between People (see: MPEP 2106.04(a)(2)(II)(C)). This is because claim 17 sets forth or describes a system for treating a user’s pain, stress level, and/or lack of sleep by recommending cannabis products to the user, which represents managing personal behavior or relationships or interactions between people. Notably, the claimed invention is similar to the process that a neurologist should follow when testing a patient for nervous system malfunctions, In re Meyer, 688 F.2d 789, 791-93, 215 USPQ 193, 194-96 (CCPA 1982), which is a further example of managing personal behavior (see: MPEP 2106.04(a)(2)(C)(iii)).
Alternatively, claim 17 can also be understood to recite limitations that set forth or describe “mental processes” that are performable in the human mind, or by pen and paper. This is because at least certain limitations of claim 17 set forth or describe at least observations or evaluations can be accomplished in the human mind or using a physical aid such as pen and paper (see: MPEP 2106.04(a)(2)(III)), such as:
generate a recommendation of a cannabis product for the user profile for the indicated treatment reason for consuming the cannabis product, the recommendation including a ranked list of strains of cannabis product that most closely match the user vector for the indicated treatment reasons for consuming the cannabis product,
creating a package of cannabis products including cannabis products recommended for the user based on the user profile, the package of cannabis products including at least one of the strains of cannabis products in the ranked list of strains;
processes pre-consumption and post-consumption video data captured from the user for a strain of cannabis product selected from the package of cannabis products to measure tetrahydrocannabinol effectiveness of the selected strain of the cannabis product for the indicated treatment reason for consuming the cannabis product;
generate a recommendation of a different cannabis product for the user profile that more closely matches the user vector for the indicated treatment reason for consuming the cannabis product
Notably, the courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation, nor do the courts distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer.
Accordingly, under step 2A (prong 1) claim 17 also recites an abstract idea because claim 1 recites limitations that fall within the “Mental processes” grouping of abstract ideas.
Under Step 2A (prong 2), the abstract idea of claims 17 and 20-22 is not integrated into a practical application.
Returning to representative claim 17, the Examiner acknowledges that claim 17 sets forth additional elements such as:
a user profiler,
a strain curator comprising a machine learning model,
using the user vector and the library matrix of cannabis product to train the machine learning model,
provides the measure tetrahydrocannabinol effectiveness of the selected strain of the cannabis product for the indicated treatment reason for consuming the cannabis product to the machine learning model;
wherein the machine learning model uses the measure tetrahydrocannabinol effectiveness and feedback data from the user regarding medical effectiveness of treatment by the selected strain of cannabis product for the indicated treatment reason for consuming the cannabis product to train the machine learning model,
a cannabis product delivery system, and,
(arguably) whereby the user consumes the different cannabis product for treatment of at least one of pain, stress level, or lack of sleep.
Although reciting these additional elements, taken alone or in combination these elements are not sufficient to integrate the abstract idea into a practical application. This is because the additional elements of claim 17 are recited at a high level of generality (i.e. as generic computing hardware) such that they amount to nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware (or, merely uses a computer as a tool to perform an abstract idea). The broad and generalized utilization and training of a machine learning model, and use of a neural network, is nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware. The claims do not provide any restriction on the manner in which the training is to occur, instead merely specifying the data to be used.
Secondly, the additional elements are insufficient to integrate the abstract idea into a practical application because the claim fails to (i) reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, (ii) implement the judicial exception with, or use the judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, (iii) effect a transformation or reduction of a particular article to a different state or thing, or (iv) applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
Further, the additional elements do no more than generally link the use of a judicial exception to a particular technological environment or field of use (such as the Internet or computing networks). With respect to whereby the user consumes the different cannabis product for treatment of at least one of pain, stress level, or lack of sleep, and even assuming arguendo this is not part of the human activity in Prong One, this limitation is ancillary to the overall procedure for recommending cannabis products. Examples of limitations that the courts have described as merely indicating a field of use or technological environment in which to apply a judicial exception include:
• i. A step of administering a drug providing 6-thioguanine to patients with an immune-mediated gastrointestinal disorder, because limiting drug administration to this patient population did no more than simply refer to the relevant pre-existing audience of doctors who used thiopurine drugs to treat patients suffering from autoimmune disorders, Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 78, 101 USPQ2d 1961, 1968 (2012);
Furthermore, in order to qualify as a “treatment” or “prophylaxis” limitation for purposes of this consideration, the claim limitation in question must affirmatively recite an action that effects a particular treatment or prophylaxis for a disease or medical condition. Neither the claims nor the specification provide a particular manner of consuming the cannabis product. Conversely, the claim appears to recite the abstract idea of treating a user by recommending a cannabis product, thus effectively administering any suitable product to the user to treat any one of pain, stress, or lack of sleep. The “consumption” is not particular, and is instead merely instructions to “apply” the exception in a generic way. Similarly, whereby the user consumes the different cannabis product for treatment of at least one of pain, stress level, or lack of sleep is akin to cutting hair after first determining the hair style, In re Brown, 645 Fed. App'x 1014, 1016-1017 (Fed. Cir. 2016) (non-precedential). That is, as Brown insignificantly performed cutting after assigning a hair design, the claimed invention in claim 17 a user consumes the cannabis product after it has been recommended.
Lastly, the operations of collecting data from the user regarding at least one of the user's lifestyle, preferences, medical conditions, or a video of the user performing a series of movements, and, capturing pre-consumption and post-consumption video data of the user for a selected strain of cannabis product represent little more than extra-solution activity (e.g. data gathering and output) that contributes only nominally or insignificantly to the execution of the claimed method (see: MPEP 2106.05(g)).
In view of the above, under Step 2A (prong 2), the additional elements of claim 17 do not integrate the recited exception into a practical application.
Under Step 2B, examiners should evaluate additional elements individually and in combination to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself). In this case, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Regarding claim 17, taken individually or as a whole the additional elements of claim 17 do not provide an inventive concept (i.e. they do not amount to “significantly more” than the exception itself). As discussed above with respect to the integration of the abstract idea into a practical application, the additional elements used to perform the claimed process amount to no more than the mere instructions to apply the exception using a generic computer and/or no more than a general link to a technological environment.
Furthermore, the additional elements fail to provide significantly more also because the claim (at best) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. For example, the additional elements of claim 17 utilize operations the courts have held to be well-understood, routine, and conventional (see: MPEP 2106.05(d)(II)), including at least:
receiving or transmitting data over a network,
storing and retrieving information in memory,
performing repetitive calculations,
presenting offers.
Even considered as an ordered combination (as a whole), the additional elements of claim 1 do not add anything further than when they are considered individually.
In view of the above, representative claim 17 does not provide an inventive concept (“significantly more”) under Step 2B, and is therefore ineligible for patenting.
Regarding dependent claims 20-22, dependent claims 20-22 recite more complexities descriptive of the abstract idea itself, and at least inherit the abstract idea of claim 17. As such, claims 20-22 are understood to recite an abstract idea under step 2A (prong 1) for at least similar reasons as discussed above.
Under prong 2 of step 2A, the additional elements of dependent claims 20-22 also do not integrate the abstract idea into a practical application, considered both individually or as a whole. More specifically, claims 20-22 rely on similar additional elements recited at a high level of generality as discussed with respect to claim 17. Further, the additional elements do no more than generally link the use of a judicial exception to a particular technological environment or field of use (such as the Internet or computing networks).
Lastly, under step 2B, claims 20-22 also fail to result in “significantly more” than the abstract idea under step 2B. This is again because the claims merely apply the exception on generic computing hardware, generally link the exception to a technological environment, and append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.
Even when viewed as an ordered combination (as a whole), the additional elements of the dependent claims do not add anything further than when they are considered individually.
In view of the above, claims 20-22 do not provide an inventive concept (“significantly more”) under Step 2B, and are therefore ineligible for patenting.
Subject Matter Allo0wable over Prior Art
Though rejected on other grounds, claims 1-5, 7-12, 14-17 and 20-22 are indicated as being allowable over the prior art for at least the reasons previously set forth on page 15 of the Final Action mailed 7/16/2025.
Further, The Examiner hereby asserts that the totality of the evidence neither anticipates nor renders obvious the particular combination of elements as claimed above. That is, the Examiner emphasizes the claims as a whole and hereby asserts that the totality of the evidence fails to set forth, either explicitly or implicitly, an appropriate rationale for combining or otherwise modifying the available prior art to arrive at the claimed invention. The combination of features as claimed would not have been obvious to one of ordinary skill in the art because any combination of the evidence at hand to reach the combination of features as claimed would require a substantial reconstruction of Applicant’s claimed invention relying on improper hindsight bias.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
PTO form 892-U discusses using facial emotion recognition in assessing impact of abstaining from usage on cannabis dependent patients (see abstract, section 2.2)
PTO form 892-V discusses various forms of cannabis used in aiding sleep (see body of article)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM J ALLEN whose telephone number is (571)272-1443. The examiner can normally be reached Monday-Friday, 8:00-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anita Coupe can be reached at 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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