DETAILED ACTION
Election Acknowledged
Applicants’ election without traverse the invention of Group I encompassing claims 2 and 3 is acknowledged. The restriction is made final without traverse.
Claim Objections
Claims 2 and 3 are objected to because of the following informalities: they do not end with a period ‘.’ See MPEP 60801(m). Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
Claims 2 and 3 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor.
Claim 2 recites, “Formula: Cannabis Vegetative Process and Solution”. It is not clear what is being claimed. Is the claim intended to be directed to a formula (composition) or a process (method)? As the claim is currently presented it is not clear what is being claimed. If the claim is intended to be a composition, what does the composition contain? If the composition is a process, what steps does the process require? As such, the claim is indefinite as it does not particularly point out the subject matter being claimed. It is noted that, although not required, the claim does not recite a transitional phrase (e.g. ‘comprising’, etc).
Claim 3 recites, “Formula: Cannabis Flower Process and Solution”. As with claim 2, it is not clear what is being claimed. Is the claim intended to be directed to a formula (composition) or a process (method)? As the claim is currently presented it is not clear what is being claimed. If the claim is intended to be a composition, what does the composition contain? If the composition is a process, what steps does the process require? As such, the claim is indefinite as it does not particularly point out the subject matter being claimed. It is noted that, although not required, the claim does not recite a transitional phrase (e.g. ‘comprising’, etc).
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 2 and 3 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claims are seemingly directed to both a process and a composition, two distinct statutory categories.
Claim 2 recites, “Formula: Cannabis Vegetative Process and Solution”. The claim is directed to two different statutory categories. Is the claim intended to be directed to a formula (composition) or a process (method)? The claim cannot claim to both. The claim fails prong 1 of the flow chart of MPEP 2106(III). See also MPEP 2104(III) which states that “a claimed invention must fall within one of the four statutory categories of invention set forth in 35 USC 101, i.e., process, machine, manufacture, or composition of matter”. Currently, it is not clear what statutory category is being claimed.
Claim 3 recites, “Formula: Cannabis Flower Process and Solution”. The claim is directed to two different statutory categories. Is the claim intended to be directed to a formula (composition) or a process (method)? The claim cannot claim to both. The claim fails prong 1 of the flow chart of MPEP 2106(III). See also MPEP 2104(III) which states that “a claimed invention must fall within one of the four statutory categories of invention set forth in 35 USC 101, i.e., process, machine, manufacture, or composition of matter”. Currently, it is not clear what statutory category is being claimed.
Claim Rejections - 35 USC § 102
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 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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claims 2 and 3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hashim et al. (US 2020/0170283).
Hashim discloses a cannabis composition in the form of a juice (‘solution’) comprising cannabis (see claim 1) (see instant claims 2 and 3). A process of making the cannabis juice is described by claim 12 (see instant claims 2 and 3).
Claims 2 and 3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Silen (US 2017/0312326).
Silen discloses a cannabis composition in the form of a solution (see abstract and claim 1) wherein the cannabis includes flowers and leaves (see abstract) (see instant claims 2 and 3). A process of making the cannabis composition/solution is described by claim 14 (see instant claims 2 and 3).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611