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 .
The Amendment filed Feb. 12, 2026 has been entered. Claims 1-20 are pending. Claims 1, 3-4, 7-8, and 13 have been amended. Claims 19-20 are withdrawn.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-2, 5-8, and 11-17 are rejected under 35 U.S.C. 103 as being unpatentable over Stoops (US 2018/0236017 A1; Aug. 23, 2018) in view of Chen et al. (CN 113615803 A; Nov. 9, 2021) and Finley et al. (US 2018/0125980 A1; May 10, 2018).
Regarding claims 1-2, Stoops discloses a method of processing a cannabis strain that can be a hemp flower ([0022], [0026]), the method comprising
grinding, which corresponds to applicant’s milling, the hemp flower to produce a milled hemp flower ([0026]),
heating the milled hemp flower using a suitable heat source, such as an oven ([0032], [0035]), and
producing an extract that can be added to beverages and/or foods ([0023]).
While Stoops discloses the process as described above, wherein the milled heated hemp flower can be combined with additional ingredients in beverages and/or foods, Stoops fails to specifically teach combining the hemp extract with a powder substance that includes a coconut powder and acacia fiber and stirring together the milled heated hemp flower and the powder substance.
Chen discloses a nutritional food composition that aids in preventing diabetes and obesity, wherein the composition comprises both coconut powder and hemp seed powder (Derwent Abstract).
As Chen teaches that it is known in the art to combine milled hemp flower with a coconut powder to produce a composition that provides nutritional benefits to the consumer, it would have been obvious to one of ordinary skill in the art to combine the milled heated hemp flower of Stoops with a powder substance that includes a coconut powder as Stoops already teaches incorporating the hemp extract into a food product. This would yield the predictable result of providing a nutritional composition in Stoops that improves the health of a consumer by having both a milled heated hemp flower and a coconut powder.
Stoops in view of Chen disclose mixing the hemp flower with a powder substance as described above, but fail to teach that the powder substance further includes yuca root and acacia fiber.
Finley discloses cannabis compositions comprising hemp extract that can further include cassava, e.g. yuca root, ([0153]) and acacia ([0155] and [0167]).
As Finley teaches that it is known in the art to combine a hemp extract with cassava, e.g. yuca root, ([0153]) and acacia ([0155] and [0167]), it would have been obvious to one of ordinary skill in the art to further include these substances in the method of Stoops and Chen. Doing so would yield the predictable result of providing acceptable additives/carriers for the hemp to the composition of Stoops.
From In re Levin, 84 USPQ 232 p. 234
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent.
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all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function.
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Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267 ;
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Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, there is no new or unexpected function arising from the combination of hemp powder with coconut powder, acacia fiber and yuca root as all continue to function predictably, as expected.
Regarding claim 5, Stoops teaches heating the milled flower in an oven at a temperature of 240 F ([0032]), thus falling within the claimed range of 230-240 F.
Regarding claim 6, Stoops teaches heating the milled hemp flower in an oven. Stoops, however, fails to teach placing the milled hemp flour on a pan to a depth of not more than about 1.5 inches and then placing the pan with the milled hemp flower in an oven.
The examiner notes that as Stoops teaches using an oven for heating, it would have been obvious to one of ordinary skill in the art to use a pan containing the milled hemp flower which is then placed in the oven. Baking pans are well known in the art for use in an oven.
With respect to the pan having a depth of not more than about 1.5 inches, it would have been obvious to one of ordinary skill in the art to use a pan having a desired depth in order to ensure the milled hemp flower is evenly heated withing a desired time frame.
Further, as stated in MPEP 2144.04 IV A: Where the only different between the prior art and the claims is a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device.
In the instant case, the depth of the pan does not perform differently as the milled hemp flower is still being heated.
Stoops additionally teaches that the milled hemp flower can be heated at predetermined intervals such that the temperature is heated to a certain temperature for a number of minutes, then allowed to cool, followed by further heating ([0035]-[0036]).
It would have been obvious to one of ordinary skill in the art to heat the milled hemp flower for 30 minutes, stirring, followed by another 20 minutes, depending on the temperature of the heating and the amount of product to be heated, especially as Stoops already teaches heating in predetermined intervals. Using a higher temperature will require less time for heating and therefore it is well within the ordinary skill in the art to vary the temperature and time of heating to result in a desired heated product.
Regarding claims 7-8, Stoops teaches that the plant material can be stems, leaves, flower, or roots ([0019]). Therefore, it would have been obvious to one of ordinary skill in the art to not use the stems, or remove the steps, before and/or after the milling step as Stoop teaches that the stems do not have to be present as part of the plant material.
With respect to the order of removing the stems, as stated in MPEP 2144.04 IV C: Selecting of any order of performing process steps is prima facia obvious in the absence of new of unexpected results.
Therefore, removing the stems before and after milling is obvious as it would not change the process/final product and would provide a product that is stem free if desired.
Regarding claims 11-12, Stoops teaches that the step of milling processes the hemp flower to a particle size of 1-10 mm ([0026]), thus overlapping the claimed range of not greater than about 2 mm. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Regarding claim 13, Chen and Finley teach that the powder substance is exactly that, a powder, which has already been milled. The prior art fails to teach further milling the powder substance to break down clumps and solid chunks to a particle size of between about 0.5 mm to 1.0 mm, however, it would have been obvious to one of ordinary skill in the art to further mill the powder to a desired particle size. This is merely routine experimentation that is well within the ordinary skill in the art.
Regarding claim 14, as stated above with respect to claim 1, Stoops in view of Chen and Finley render obvious combining the milled heated hemp flower with a powder substance.
With respect to the ratio of the hemp flower to the powder substance being about 1:1.5, it would have been obvious to one of ordinary skill in the art vary the amount of each of the hemp flower and powder subsance to result in a desired ratio depending on the amount of benefits provided by CBD in the hemp powder and the benefits provided by the powder substance. This is merely routine experimentation that is well understood, routine and conventional in the art.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Regarding claim 15, with respect to the stirring, it would have been obvious to one of ordinary skill in the art to stir the composition until both the hemp flower and powder substance are thoroughly mixed.
Regarding claim 16, Stoops teaches storing the hemp flower in a sealable container before use ([0023]), and therefore it would have been obvious to store the stirred composition of Stoops and Chen and Finley in a sealed container.
Regarding claim 17, Stoops teaches a step of sealing the containing and storing the container in a cool location for a period of time ([0023]).
With respect to the time of storage, it would have been obvious to store for a period of 24 to 72 hours depending on the temperature of storage, as a cooler temperature will extend the shelf life ([0023]), as well as the intended use of the composition.
Claims 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Stoops (US 2018/0236017 A1; Aug. 23, 2018) in view of Chen et al. (CN 113615803 A; Nov. 9, 2021) and Finley et al. (US 2018/0125980 A1; May 10, 2018) as applied to claim 1 above, and further in view of West (US 2021/0329938 A1; Oct. 28, 2021).
Regarding claims 3-4, the combination of the prior art teaches the method as described above with respect to claim 1, but fails to further teach adding a quantity of hemp kief to the milled, heated hemp flower to produce a combination of milled heated hemp flower and hemp kief, wherein the quantity of hemp kief is about 30% of the combination.
West discloses a method for preparing hemp products for use in beverage compositions ([0005]). West teaches that hemp can be provided in a trim format, a flower format and/or a kief format ([0007]). West teaches that kief contains higher concentrations of cannabinoids and the varying concentrations found in hemp allows for beverage compositions to be designed to have varying potency levels based on the format selected ([0014]-[0016]).
It would have been obvious to one of ordinary skill in the art to further add hemp kief to the milled heated hemp flower of Stoops depending on the desired concentration and potency of the cannabinoids in the food product as hemp kief contains higher concentrations of cannabinoids as taught by West.
It further would have been obvious to determine the quantity of hemp kief to be combined with the milled heated hemp flower depending, again, on the desired potency. This is merely routine experimentation that is well within the ordinary skill in the art.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Claims 9-10 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Stoops (US 2018/0236017 A1; Aug. 23, 2018) in view of Chen et al. (CN 113615803 A; Nov. 9, 2021) and Finley et al. (US 2018/0125980 A1; May 10, 2018) as applied to claim 17 above, and further in view of Mitchell et al. (US 2008/0241339 A1; Oct. 2, 2008).
Regarding claims 9-10, Stoops teaches a milling steps as described above using flowers, but fails to teach a step of drying the hemp flower and a step of curing the hemp flower before the milling step.
Mitchell teaches a hemp food product and process, wherein hemp seeds are processed to produce a food product base. Mitchell further teaches that before a grinding, or milling, process, the seeds are processed to produce seed kernels, followed by a water, or curing, step (Abstract).
It would have been obvious to one of ordinary skill in the art to dry and curing the hemp flower of Stoops before milling in order to effectively process the plant for CBD extraction.
Regarding claim 18, Stoops teaches homogenizing to achieve a homogenous mixture, but fails to specifically disclose a step of homogenizing after the storing step.
Mitchell teaches a hemp food product and process, wherein hemp seeds are processed to produce a food product base. Mitchell further teaches that the final product is homogenized to produce a stable, maintainable product ([0026]).
Therefore, it would have been obvious to one of ordinary skill in the art to homogenize the composition after storing in order to ensure a homogenous mixture while also producing a stable, maintainable product as taught by Mitchell.
Response to Arguments
Applicant’s amendment has overcome the 112(b) rejection from the previous Office Action and therefore it has been withdrawn.
Applicant’s arguments with respect to the 103 rejection over Stoops in view of Chen are moot based upon the new grounds of rejection further in view of Finley. Finley discloses cannabis compositions comprising hemp extract that can further include cassava, e.g. yuca root, ([0153]) and acacia ([0155] and [0167]).
As Finley teaches that it is known in the art to combine a hemp extract with cassava, e.g. yuca root, ([0153]) and acacia ([0155] and [0167]), it would have been obvious to one of ordinary skill in the art to further include these substances in the method of Stoops and Chen. Doing so would yield the predictable result of providing acceptable additives/carriers for the hemp to the composition of Stoops.
From In re Levin, 84 USPQ 232 p. 234
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent.
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all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function.
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Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267 ;
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Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, there is no new or unexpected function arising from the combination of hemp powder with coconut powder, acacia fiber and yuca root as all continue to function predictably, as expected.
Further, the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07)
Therefore, as all the claimed components are known in the art to be useful in combination, it would have been obvious to combine acacia fiber with the powder substance of Stoops in view of Chen.
For the reasons stated above, the 103 rejections are maintained.
Conclusion
No claims are allowed.
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 STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791