DETAILED ACTION
Applicant’s response filed 7/16/2026 has been fully considered. The following rejections and/or objections are either reiterated or newly applied.
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 .
Claim Status
Claims 26-29 are newly added by Applicant.
Claims 21-25 are cancelled by Applicant.
Claims 1-20 and 26-29 are currently pending and are under examination.
Claims 1-20 and 26-29 are rejected.
Claim 1 is objected to.
Priority
The instant application claims domestic benefit to U.S. Provisional Application No. 63/374,535 filed 09/03/2022. The claims to domestic benefit are acknowledged. As such, the effective filing date for claims 1-20 and 26-29 is 09/03/2022.
Information Disclosure Statement
The IDS filed 07/15/2026 follows the provisions of 37 CFR 1.97 and has been considered in full. A signed copy of the list of references cited from this IDS is included with this Office Action.
Drawings
The objection to the drawings is withdrawn. The drawings filed on 9/1/2023 are accepted.
Withdrawn Rejections
35 USC 112(b)
The rejection of claims 2, 4, 8, 14, 16 and 18-20 under 35 USC 112(b) is withdrawn in view of claim amendments.
35 USC 102
The rejection of claims 1-7, 9-11, 13-15 and 17-20 under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Sawler et al. (“Sawler”; US 11,312,988 B2) is withdrawn in view of claim amendment.
35 USC 103
The rejection of claim 8 under 35 USC 103 over Sawler et al. and the rejection of claims 12 and 16 under 35 USC 103 for being unpatentable over Sawler et al. in view of Alghanim et al. are withdrawn in view of claim amendment. However, a new ground of rejection is made below as necessitated by claim amendment.
Claim Objections
The objection to claims 3, 5 and 13 are withdrawn in view of claim amendments.
Claim 1 is objected to because line 4 should recite “cultivar; [[and]]”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 27 and 29 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.
This rejection is newly recited as necessitated of claim amendment.
Claim 27, line 1, recites “the phenotypic data”. It’s unclear which phenotypic data is referenced in claim 13 because line 3 recites “phenotypic data from the plant or portion thereof” and line 6 recites “reference phenotypic data”. Clarify which phenotypic data is referenced.
Claim 29, line 1, recites “the phenotypic data”. It’s unclear which phenotypic data is referenced in claim 17 because line 3 recites “phenotypic data from the plant” and line 6 recites “databases of phenotypic … data”. Clarify which phenotypic data is referenced.
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 1-20 and 26-29 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Any newly recited portions herein are necessitated by claim amendment.
Step 1:
Step 1 asks whether the claims recite statutory subject matter. In the instant application, claims 1-12 recite a method, claims 13-16 and 26-27 recite a method, and claims 17-20 and 28-29 recite a method. As such, these claims recite statutory subject matter (Step 1: YES).
Step 2A, Prong 1:
Claims that recite statutory subject matter are analyzed under Step 2A, Prong 1 to determine if they recite any concepts that equate to an abstract idea, law of nature or natural phenomena. The instant claims recite the following limitations that equate to one or more categories of judicial exception:
Claim 1 recites “obtaining phenotypic data from one or more plants or plant parts from the cultivar; and/or obtaining genotypic data from one or more plants or plant parts from the cultivar; and assigning a cultivar designation based on the phenotypic data and/or the genotypic data, thereby identifying the cultivar.”
Claims 3, 27 and 29 recite “wherein the phenotypic data comprises leaf size; plant size; flower; growth profile; fiber density, tensile strength, biofuel efficiency, phytoremediation use, nutritive potential, nutrient content, and/or ionomics.”
Claim 5 recites “wherein the genotypic data comprises genetic analysis, transcriptional analysis, translational analysis, copy number variation analysis metabolomics analysis, proteomic analysis, epigenetic analysis, or combinations thereof.”
Claim 6 recites “further comprising determining genetic relationship information from the genotypic data.”
Claim 9 recites “further comprising providing, characterizing, confirming or denying breeding information.”
Claim 10 recites “further comprising providing, characterizing, confirming or denying ancestry information.”
Claim 11 recites “further comprising providing, characterizing, confirming or denying cultivar identity information.”
Claim 12 recites “further comprising providing, characterizing, confirming or denying supply chain information.”
Claim 13 recites “obtaining phenotypic data from the plant or portion thereof; obtaining genotypic data from the plant or portion thereof; and comparing the phenotypic data and the genotypic data obtained from the plant or portion thereof to reference phenotypic data and reference genotypic data for Cannabis spp., thereby identifying the Cannabis plant or portion thereof.”
Claim 15 recites “further comprising validating or certifying the identity of the Cannabis plant or portion thereof.”
Claim 16 recites “further comprising determining if the Cannabis plant is clonal, a sibling, or a distant relative with respect to a reference plant or reference plant material.”
Claim 17 recites “obtaining phenotypic data from the plant; obtaining genotypic data from the plant; and comparing the phenotypic and genotypic data from the plant to one or more databases of genotypic data, thereby identifying the Cannabis plant.”
Claim 19 recites “wherein the genotypic data is used to evaluate heterozygosity, genetic distance, and/or uniqueness.”
Claim 20 recites “wherein the identifying comprises identification of most likely cultivar, identification of most closely related cultivar with genetic similarities of certain features or attributes, identification of least closely related cultivar with genetic similarities of certain features or attributes.”
Limitations reciting a mental process.
Claims 1, 6, 10-13, 15-17 and 19-20 contain limitations recited at such a high level of generality that they equate to a mental process because they are similar to the concepts of collecting information, analyzing it, and displaying certain results of the collection and analysis in Electric Power Group, LLC, v. Alstom (830 F.3d 1350, 119 USPQ2d 1739 (Fed. Cir. 2016)), which the courts have identified as concepts that can be practically performed in the human mind. The paragraphs below discuss the broadest reasonable interpretation (BRI) of the limitations in these claims that recite a mental process.
Regarding claims 1, 13 and 17, obtaining phenotypic/genotypic data includes collecting data. Assigning a cultivar designation based on phenotypic/genomic data includes analyzing data and making a mental determination. Comparing genotypic/phenotypic data includes analyzing data. Identifying the cultivar includes making a mental determination.
Regarding claims 6, 9-12, 15-16 determining/confirming/denying information, validating identity, and determining a plant as a sibling includes analyzing data and making mental determinations. Regarding claim 19, evaluating uniqueness includes determining that a variant is rare or common. Regarding claim 20, identifying includes comparing genetic data between plants which is a mental process.
Limitations included in the recited judicial exception.
The limitations in claims 3, 5, 27 and 29 are included in the judicial exception in claim 1 of obtaining phenotypic/genotypic data because it further limits the type of data being collected.
As such, claims 1-20 and 26-29 recite an abstract idea (Step 2A, Prong 1: YES).
Additional Elements:
Once limitations have been identified that recite a judicial exception, the claims are evaluated for additional elements. The additional elements are then analyzed under Step 2A, Prong 2 then Step 2B. The instant claims recite the following additional elements:
Claims 2, 26 and 28 recite “wherein the phenotypic data is in a digital form of the plant or a portion thereof”
Claim 4 recites “wherein the genotypic data is obtained using polymerase chain reaction (PCR), next generation sequencing (NGS), restriction site associated DNA sequencing (RADseq), long read sequencing, nanopore long read sequencing, Sanger sequencing, restriction fragment length polymorphism (RFLP) analysis, oligonucleotide probes SNP chip array, microarray, and combinations thereof.”
Claim 7 recites “further comprising transmitting the assigned cultivar designation to a requester or recipient.”
Claim 8 recites “wherein the requester or recipient is a grower, a government / regulatory agency, a dispensary, an individual, law enforcement, a researcher, a company, or a breeder.”
Claim 14 recites “wherein the genotypic data is obtained by sequencing genomic DNA from the plant or portion thereof.”
Claim 18 recites “wherein the genotypic data is obtained by sequencing genomic DNA from the plant or portion thereof.”
These above recited additional elements are analyzed below under both Step 2A, Prong 2 and Step 2B:
Step 2A, Prong 2:
Claims found to recite a judicial exception under Step 2A, Prong 1 are then further analyzed to determine if the claims as a whole integrate the recited judicial exception into a practical application or not (Step 2A, Prong 2). The judicial exception is not integrated into a practical application because the claims do not recite additional elements that reflect an improvement to a computer, technology, or technical field (MPEP § 2106.04(d)(1) and 2106.5(a)), require a particular treatment or prophylaxis for a disease or medical condition (MPEP § 2106.04(d)(2)), implement the recited judicial exception with a particular machine that is integral to the claim (MPEP § 2106.05(b)), effect a transformation or reduction of a particular article to a different state or thing (MPEP § 2106.05(c)), nor provide some other meaningful limitation (MPEP § 2106.05(e)). Rather, the claims include limitations that equate to an equivalent of the words “apply it” and/or to instructions to implement an abstract idea on a computer (MPEP § 2106.05(f)) and to insignificant extra-solution activity (MPEP § 2106.05(g)). The paragraphs below discuss the additional elements recited above in the instant claims.
Regarding claims 2, 7, 26 and 28, the BRI of “in digital form” and “transmitting” includes these claims being performed by a generic computer. Therefore, these limitations equate to mere instructions to implement an abstract idea on a generic computer, which the courts have established does not render an abstract idea eligible in Alice Corp. 573 U.S. at 223, 110 USPQ2d at 1983. Additionally, they invoke a computer as a tool to perform an existing process such as receiving, storing, or transmitting data (MPEP 2106.05(f)(2)).
Regarding claims 2, 4, 14, 18, 26 ad 28, these limitations equate to insignificant extra-solution activity of necessary data gathering because they gather data necessary to perform the judicial exceptions in claims 1, 13 and 17.
Regarding claims 7-8, these limitations equate to insignificant extra-solution activity of necessary data outputting because they output the result of the judicial exception in claim 1 of “assigning a cultivar designation.”
As such, claims 1-20 and 26-29 are directed to an abstract idea (Step 2A, Prong 2: NO).
Step 2B:
Claims found to be directed to a judicial exception are then further evaluated to determine if the claims recite an inventive concept that provides significantly more than the judicial exception itself (Step 2B). These claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because these claims recite additional elements that equate to instructions to apply the recited exception in a generic way and/or in a generic computing environment (MPEP § 2106.05(f)) and to well-understood, routine and conventional (WURC) limitations (MPEP § 2106.05(d)). The paragraphs below discuss the additional elements recited above in the instant claims.
Regarding claims 2, 7, 26 and 28, the BRI of “in digital form” and “transmitting” includes these claims being performed by a generic computer. Therefore, these limitations equate to instructions to implement an abstract idea on a generic computing environment, which the courts have established does not provide an inventive concept in Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367, 115 USPQ2d 1636, 1639 (Fed. Cir. 2015).
Regarding claims 2, 7, 26 and 28, the broadest reasonable interpretation of “in digital form” and “transmitting” includes these claims being performed by a generic computer and thus equate to receiving/transmitting data over a network, which the courts have established as WURC limitation of a generic computer in buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014). Claim 8 also equates to transmitting/receiving data over a network because it further limits where the data is being transmitted.
Regarding the above cited additional elements in claims 2, 4, 7-8, 14, 18, 26 and 28 when viewed in combination, these limitations equate to WURC limitations as taught by Vergara et al. (“Vergara”; Critical Reviews in Plant Sciences 35, no. 5-6 (2016): 364-377; previously cited on PTO892 mailed 3/19/2026). Vergara reviews genetic and genomic tools for Cannabis sativa (title). Six whole-genome assemblies are publicly available, using Illumina and Roche 454 sequencers (pg. 3, sec. II.A) (Table 1). The assemblies were assembled using computer software such as SOAPdenovo and Newbler (pg. 3, sec. II.A), indicating that sequencing genomic DNA of Cannabis is WURC in combination with generic computer functions.
When these additional elements are considered individually and in combination, they do not provide an inventive concept because they equate to WURC functions/components of a generic computer in combination with sequencing genomic DNA of Cannabis as taught above by Vergara. Therefore, these additional elements do not transform the claimed judicial exception into a patent-eligible application of the judicial exception and do not amount to significantly more than the judicial exception itself (Step 2B: No).
As such, claims 1-20 and 26-29 are not patent eligible.
Response to Arguments under 35 USC 101
Applicant's arguments filed 7/16/2026 have been fully considered but they are not persuasive.
Applicant lists different advantages provided by the claims (pg. 10-11) and argues that the claims solve a problem of reliable and consistent identification of Cannabis cultivars that was not previously available by current methods (pg. 11). Applicant’s arguments are not persuasive for the following reasons:
Integration into a practical application is evaluated by “(1) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (2) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application” (MPEP 2106.04(d).II), and/or by “the way in which the additional elements use or interact with the exception may integrate it into a practical application” (MPEP 2106.04(d).III).
Independent claims 1, 13 and 17 recite only judicial exceptions. MPEP 2106.05(a) recites “the judicial exception alone cannot provide the improvement.” As such, claims 1, 13 and 17 cannot be integrated into a practical application because they do not recite additional elements.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-11, 13-15, 17-20 and 26-29 are rejected under 35 USC 103 for being unpatentable over Sawler et al. (“Sawler”; US 11,312,988 B2; previously cited on PTO892 mailed 3/19/2026) in view of Hilling et al. (“Hilling”; A systematic investigation of Cannabis; previously cited on PTO892 mailed 3/19/2026).
This rejection is newly recited as necessitated by claim amendment. The bold and italicized text below are the limitations of the instant claims, and the italicized text serves to map the prior art onto the instant claims.
Claims 1, 13 and 17:
A method for identifying a Cannabis cultivar, comprising the steps of: obtaining phenotypic data from one or more plants or plant parts from the cultivar; and obtaining genotypic data from one or more plants or plant parts from the cultivar; and
Sawler determines if a cannabis sample comprises hemp or marijuana and/or C. sativa or C. indica (abstract) (abstract) (col. 2, lines 23-26) (Figure 1a) (col. 18, lines 3-5). Genomic DNA acquired from a cannabis test sample is genotyped (claim 1, steps I-II). The cannabis test sample may be a leaf sample (claim 1, step V). The most common way to classify cultivars is through plant morphology based on height, leaves, smell and maturation (col. 2, lines 22-29). However, Sawler does not obtain phenotypic data from the cultivars.
Hilling investigates evolutionary and taxonomic relationships within the Cannabis genus by performing genetic, morphological, and chemotaxonomic analysis of 157 Cannabis accessions of known geographic origin (abstract, pg. vi).
It would have been prima facie obvious to have modified the method of Sawler for determining whether a Cannabis plant is hemp, marijuana, sativa, or indica based on genotype by also making the determination based on morphological features because Hilling teaches that plant morphology detects infraspecific taxa of C. sativa and C. indica while genotype differentiates between C. sativa and C. indica (abstract, pg. vi). Thus, plant morphology allows for identification of specific cultivars. There would have been a reasonable expectation of success to use both genotype and phenotype because Hilling states that databases of phenotypes and genotypes exist (abstract, pg. vi) and because Sawler teaches that morphology is the most used form of cultivar identification (col 2, lines 22-29).
(claim 1): assigning a cultivar designation based on the phenotypic data and the genotypic data, thereby identifying the cultivar.
(claim 13): comparing the phenotypic data and the genotypic data obtained from the plant or portion thereof to reference phenotypic data and reference genotypic data for Cannabis species, thereby identifying the Cannabis plant or portion.
(claim 17): comparing the phenotypic data genotypic data from the plant to one or more databases of phenotypic and genotypic data, thereby identifying the Cannabis plant.
Sawler determines if a sample is hemp or marijuana according to sets of SNPs, wherein the SNPs of a test sample are compared to a reference profile such as in Table 5 (claim 1, step IV). The same procedures can be performed for indica and sativa (col. 10, lines 34-40). Sawler recites “[a]ncestry analysis can determine if the cannabis sample is a ‘pure’ descendant of a reference sample or reference profile or if it is the result of interbreeding between individuals from two different populations, i.e. an admixed individual or ‘intraspecific hybrid” (col. 20, lines 1-5). The reference sample/profile can be of a specific cultivar/strain of sativa or indica (col. 3, lines 46-48) (col. 3, lines 58-65). Table 2 gives genotypes of specific sativa and indica strains. Thus, the ancestry analysis can identify a cannabis sample as a specific cultivar/strain. The references profiles/strains contain SNP allele identities of a species are stored in a database (col. 12, lines 51-63) (genotype). Sawler teaches the most common way to classify cultivars is through plant morphology based on height, leaves, smell and maturation (col. 2, lines 22-29) (phenotype).
Sawler does not compare test phenotypes to a reference profile of phenotypes. However, it would have been prima facie obvious over the combination of Sawler and Hilling, which identifies cannabis cultivars based on phenotypes and genotypes, to compare the phenotypic profile of a test cultivar to a reference phenotypic profile, just as Sawler compares a test genotype to a reference genotype profile. This would be done to correctly map the phenotype of a test cultivar to a reference cultivar that has been previously phenotyped and identified. There would have been a reasonable expectation of success because Sawler teaches that phenotypic classification of cannabis cultivars is the most common way of identification (col. 2, lines 22-29), and Hilling discloses databases of plant morphology (abstract, pg. vi).
Claims 2-3 and 26-29:
Sawler discloses plant morphology based on height, leaves, smell and maturation (phenotypic data) (col. 2, lines 22-29), and digital databases storing reference genotype profiles (col. 7, lines 26-32) but does not obtain phenotypic data in digital form. Hilling receives morphological features from a database accession (digital form) (abstract, pg. vi). The combination of Sawler and Hilling teach comparing test phenotypes to reference phenotype profiles stored in a digital database. Thus, it would have been prima facie obvious to have modified the phenotypic data of Sawler to be obtained in digital form as taught by Hilling, just as the genotype data in Sawler is obtained in digital form, in order to compare test phenotypes to a digital database of reference phenotype profiles, resulting in identification of cultivars using digital databases. There would have been a reasonable expectation of success to obtain digital phenotypic data because Hilling discloses databases containing phenotypic data (pg. vi, abstract).
Claims 4-5, 14 and 18:
Sawler teaches genotyping is performed with PCR (claim 3), genotyping by sequencing (col. 8, lines 50-52), or sequencing by ligation (col. 9, lines 1-6). The broadest reasonable interpretation of a genotype includes it being a “genetic analysis”.
Claims 6 and 10-11:
Sawler discloses measuring genetic/ancestral relatedness (characterizing genetic relationship, ancestry, and cultivar identity information) of a cannabis sample to a Cannabis sativa reference and/or a Cannabis indica reference, wherein SNPs of the cannabis sample are compared to the reference profile alleles stored in the database (col. 6, lines 63-67) (col. 12, lines 26-45). The cannabis plants are cultivars (col. 17, col. 6-14) (col 18, lines 1-6) (Figure 1a).
Claim 7:
Sawler recites “displaying and/or providing a document displaying the calculated genetic relatedness of the test sample” (col. 12, lines 44-45) and recites the “document can be an electronic document that is provided to a third party” (a recipient) (col. 10, lines 20-21).
Claim 8:
Sawler teaches “[g]enetic markers distributed across the genome can be used to provide an estimate of the ancestry proportions, and the breeder can then select the offspring with the highest proportion of cultivated ancestry” (col. 11, lines 57-59). Sawler also teaches “displaying and/or providing a document displaying the calculated genetic relatedness of the test sample” (col. 12, lines 44-45) and “the document can be an electronic document that is provided to a third party” (col. 10, lines 20-21).
However, Sawler does not teach that the “third party” is a breeder. Given Sawler’s disclosure of transmitting documents to a third party (col. 10, lines 20-21), using genetic analysis to facilitate breeding (col. 11, lines 57-59), and breeders selecting partners (col. 2, lines 41-45), it would have been prima facie obvious to have modified Sawler’s method of sending documents containing genomic information of cultivars to third parties by sending the document to breeders so that they can select which cultivars to breed. There would have been a reasonable expectation of success to have a breeder receive the document because Sawler teaches that a third party is capable of receiving it (col. 10, lines 20-21).
Claims 9 and 15:
Sawler recites “[t]he ancestry estimates can be used for example to identify Sativa- or Indica-type breeding individuals when classification is unknown or unsure” (characterizing breeding information) (col. 11, lines 36-38). This necessitated identity verification.
Claim 19:
Sawler teaches SNPs were genotyped from the cannabis test sample, wherein each SNP contained a minor allele (claim 1, step, II). The term “minor allele” is defined as the allele least commonly present in a population, e.g. C. sativa and C. indica or marijuana and hemp (uniqueness) (col. 5, lines 50-52). The minor allele listed in Tables 4, 5 and 8 is present in the frequency indicated therein.
Claim 20:
Sawler recites “ancestry contribution estimate can identify a population structure that is associated or is most likely given the nucleotide occurrences of the SNPs in the cannabis sample” (col. 10, lines 56-58). The equation used for ancestry calculates a likelihood (Example 5, col. 19-20) (identification of most likely cultivar) (identification of most closely related cultivar with genetic similarities of certain features or attributes).
Claims 12 and 16 are rejected under 35 USC 103 for being unpatentable over Sawler et al. (“Sawler”; US 11,312,988 B2; previously cited on PTO892 mailed 3/19/2026) in view of Hilling et al. (“Hilling”; A systematic investigation of Cannabis; previously cited on PTO892 mailed 3/19/2026), as applied to claims 1 and 13, and in further view of Alghanim et al. (“Alghanim”; Analytical and Bioanalytical Chemistry 376, no. 8 (2003): 1225-1233; previously cited on PTO892 mailed 3/19/2026).
This rejection is newly recited as necessitated by claim amendment. The limitations of claims 1 and 13 are taught above by Sawler and Hilling.
Claims 12 and 16:
Sawler recites “[a]ncestry analysis can determine if the cannabis sample is a ‘pure’ descendant of a reference sample or reference profile or if it is the result of interbreeding between individuals from two different populations” (Cannabis plant … relative with respect to a reference plant or reference plant material) (col. 20, lines 1-5). The reference sample/profile can be of a specific cultivar/strain of sativa or indica (col. 3, lines 46-48) (col. 3, lines 58-65). Table 2 gives genotypes of specific sativa and indica strains. However, Sawler does not characterize supply chain information or determine if a cannabis sample is a clone.
Alghanim teaches that many breeders clone their cultivars, resulting in identical DNA profiles. These identical DNA profiles can be used to determine where plant material originated. This is helpful for assessing plant distribution, aiding law enforcement in drug eradication efforts, and forensic applications such as associating a leaf found on a suspect to plant material found in a crime scene or to link an anonymous growing operation (i.e. marijuana cultivated in a particular field) to material found in a suspect’s possession (pg. 1231, col. 2, last para. – pg. 1232, col. 1, para. 1).
It would have been prima facie obvious to have used the reference database of Sawler to determine if a cannabis sample is a clone and determine where the sample originated because it has applications in plant distribution, forensics and law enforcement as taught by Alghanim. There would have been a reasonable expectation of success because Sawler provides a database of genetic information from specific strains which could be used to assess clonal identity by comparing genetic profiles and plant origin.
Response to Arguments under 35 USC 102 and 103
Applicant's arguments filed 7/16/2026 have been fully considered but they are not persuasive.
Applicant’s remarks regarding Sawler under 35 USC 102 are noted but are not persuasive in view of withdrawal of the rejection under 35 USC 102 (pg. 12). Applicant’s remarks regarding the previously applied rejections under 35 USC 103 are noted but are not persuasive in view of the new grounds of rejection necessitated by claim amendment that uses Sawler in view of Hilling to teach both phenotype and genotype data (pg. 12-14).
Conclusion
No claims are allowed.
Notable but not relied upon prior art includes: Dutch Passion (Understanding cannabis phenotypes, genotypes and chemotypes; newly cited). Pandey et al. (Jscience 24, no. 8 (2021); newly cited) phenotype-genotype in plants. Xiao et al. (Journal of advanced research 35 (2022): 215-230; newly cited) advanced high-throughput plant phenotyping techniques for genome-wide association studies. Concept of integrative taxonomy.
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.
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/N.A.A./Examiner, Art Unit 1687
/KAITLYN L MINCHELLA/Primary Examiner, Art Unit 1685
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