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 .
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.
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, 2, 4-12, 14-19 are rejected under 35 U.S.C. 103 as being unpatentable over Woelfel et al. (USPA 2019/0015383), made of record by Applicant.
Regarding amended Claims 1, 4-9, 17, Woelfel teaches a dry sweetened composition comprising an insoluble food carrier, and a coating on the insoluble carrier, as Woelfel teaches a dried emulsion as a coating on a substrate to form a film coating, where the exemplary substrates include tea leaves, nuts, grains, seeds, dried fruits and vegetables, all of which meet the insoluble food carrier as recited in Claim 9, where drying the emulsion includes spray drying, tumble coating or agglomeration (Paragraphs 17, 73, 74, 78). Woelfel teaches the emulsion coating comprises a purified cannabinoid mixture, carrier oils, water and a water soluble agent which can comprise polysaccharides, complex carbohydrates/modified food starch and sugar alcohols/polyols (Paragraphs 9-11 and 16), and specifically teach the film coating comprising a modified food starch and a sugar alcohol in combination (Paragraph 57). Therefore, Woelfel teaches the claimed insoluble food carrier and a coating comprising a sweetener, in light of the teaching of polyols as recited in Claim 6, a water soluble matrix material in light of the teaching of water soluble polysaccharides as recited in Claim 7, and also teaches an optional emulsifier/surfactant including lecithin and others (Paragraph 45), as recited in Claim 8.
Regarding amended Claim 1 in particular, Woelfel teaches an embodiment of the coating composition comprising by weight, 0.5-30% cannabinoid mixture, 1-20% carrier oil, 5-30% complex carbohydrate which is the water soluble agent and meets the limitation of the amount of matrix material, and 10-50% of a polysaccharide, surfactant or polyol or mixtures thereof (Paragraph 59), which meets the limitation of the amount of sweetener/polyol. Woelfel teaches an Example 9 of a cannabinoid film coating on tea leaves, and teaches the coating includes 11.6% coconut oil and 5.2% THC distillate, where the THC distillate refers to a cannabinoid oil (Paragraph 31). Therefore, the THC distillate/oil meets the limitation of the flavor oil at an amount within the claimed range. The emulsifier can be at 0% and therefore is optional. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the coating composition to have had the claimed components at amounts within the claimed ranges, in light of the teachings of Woelfel.
Woelfel teaches about the application of the coating onto the insoluble food carrier and teaches that in the case of irregular-shaped products like tea leaves, atomizing the emulsion for application in a tumble coating process may be more suitable than panning (Paragraph 79), and teaches benefits of tumble coating include high level of control over the tumbling motion, high level of control over the application of the liquid, viscosity control and/or ability to remove water to effectively form the film coating and teaches time ranges for the coating atomizing and tumbling until the substrate is sufficiently coated (Paragraph 78). Woelfel also teaches that in some examples the tea leaves are coated with a cannabinoid film (Paragraph 80) and teaches an embodiment where tea leaves are coated in a tumbling process to provide a particular THC dose (Example 9). While Woelfel does not specifically teach a percentage of the coating by weight of the sweetened composition, since Woelfel teaches atomizing and tumbling until the substate is sufficiently coated, it would have been well within the skill of one of ordinary skill in the art to have determined the optimal amount of coating on the tea leaves in order to provide a desired level of active ingredients, or desired level of coating in general on the tea leaves. In light of the guidelines taught by Woelfel, it would require a routine level of experimentation to determine the optimal percentage of coating based on the total weight of the sweetened composition, in light of the particular coated end product desired. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the percentage of coating based on the total weight of the sweetened composition involves only routine skill in the art. MPEP 2144.05 II.
Regarding amended Claim 2, Woelfel teaches where the coating comprises an oil comprising a flavor oil, as Woelfel teaches the inclusion of carrier oils as part of a hydrophobic component or associated with the purified cannabinoid mixture (Paragraphs 12 and 24). Woelfel teaches that there are some flavoring agents naturally retained in the cannabinoid mixture, such as limonene (Paragraph 52), therefore teaching the coating comprises an oil comprising a flavor oil.
Regarding amended Claims 10-12, 18, Woelfel teaches a process for preparing the dry sweetened composition according to Claim 1, the process comprising the steps of preparing a mixture comprising optionally an oil comprising a flavor oil, a water soluble matrix material, a sweeter and optionally an emulsifier, as Woelfel teaches the coating composition as set forth above in the rejection of Claim 1, and teaches an Example 9 where the emulsion was prepared by mixing the ingredients and then tumbling the tea leaves with it to form the film coated tea leaves (Example 9). Woelfel does not teach any heating during the blending process, therefore teaching room temperature, and also teaches in the disclosure about the tumbling and does not disclose any heating during tumbling and also discloses the substrate may be dried by continuing to tumble the substrate for a suitable period of time with or without heated air (Paragraph 78), therefore also teaches room temperature air for the tumbling/drying step. Woelfel teaches the emulsion may have a viscosity suitable for application to a substrate and teaches emulsions may have an apparent viscosity equal to or less than 700cP or 700mPas, where the emulsion may have a viscosity that allows the emulsion to readily flow through a film coating process (Paragraph 66), which meets the limitation of a viscosity greater than 500mPas. While Woelfel does not specify that the viscosity is measured at the claimed temperature and shear rate, since Woelfel does not teach heating during the coating process and also teaches providing a viscosity for the emulsion suitable for carrying out the film coating process, it would have been well within the skill of one of ordinary skill in the art to have determined the optimal viscosity within the range taught in order to ensure the emulsion is of a suitable viscosity to be able to be sufficiently coated on to the tea leaves.
Regarding amended Claims 14 and 15, Woelfel teaches a consumer product of tea leaves coated in the above discussed emulsion, as set forth above, where the consumer product is a beverage as Woelfel teaches the coated tea leaves can be dissolved in water to form a beverage (Paragraph 73).
Regarding amended Claim 16, Woelfel is taken as cited above in the rejection of amended Claims 1 and 4 and teaches an embodiment of the coating composition comprising by weight, 0.5-30% cannabinoid mixture, 1-20% carrier oil, 5-30% complex carbohydrate which is the water soluble agent and meets the limitation of the amount of matrix material, and 10-50% of a polysaccharide, surfactant or polyol or mixtures thereof (Paragraph 59), Woelfel teaches an Example 9 of a cannabinoid film coating on tea leaves, and teaches the coating includes 11.6% coconut oil and 5.2% THC distillate, where the THC distillate refers to a cannabinoid oil (Paragraph 31). Therefore, the combined coconut oil/THC distillate/oil mixture meets the limitation of the flavor oil at an amount within the claimed range. While Woelfel teaches surfactants/emulsifiers can be included in the coating (Paragraph 45), an amount is not specified. As set forth above, Woelfel teaches an amount of 10-50% of a combined amount of polysaccharides, surfactant and polyol, which includes the claimed combination of sweetener and emulsifier. However, considering the guidelines taught by Woelfel, it would have been well within the skill of one of ordinary skill in the art before the effective filing date of the invention to have optimized the amounts of sweeteners and surfactant/emulsifier added to the coating for their art recognized benefits and functionality. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the specific amount of sweetener and surfactant/emulsifier present in the coating involves only routine skill in the art. MPEP 2144.05 II.
Regarding amended Claim 19, as set forth above, Woelfel teaches the emulsion may have a viscosity suitable for application to a substrate and teaches emulsions may have an apparent viscosity equal to or less than 700cP or 700mPas, where the emulsion may have a viscosity that allows the emulsion to readily flow through a film coating process (Paragraph 66). While Woelfel does not teach the mixture has a viscosity greater than 900 mPas, Woelfel does teach providing a viscosity for the emulsion suitable for carrying out the film coating process and teaches one benefit of the tumble coating is viscosity control, as set forth above. Therefore, it is submitted that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the coating of Woelfel to have had a higher or lower viscosity depending on the type of coating application process chosen. Absent any teachings to the contrary regarding the claimed viscosity of the coating, the Examiner maintains that it would have been well within the skill of one of ordinary skill in the food coating art to have determined the most optimal viscosity to ensure optimal and even coating of the food product chosen.
Claims 13 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Woelfel et al. (USPA 2019/0015383), made of record by Applicant, in view of Schmidt et al.
Regarding Claims 13 and 20, Woelfel is taken as cited above in the rejection of Claim 10 and fails to teach the water activity of the insoluble food carrier, but as set forth above, Woelfel teaches a suitable insoluble food carrier is tea leaves and teaches drying of the coated compositions as well, as set forth above.
Schmidt teaches water activity for instant tea is in the range of 0.130-0.267 (Appendix E, Page 410), which is well below the claimed limitation of below 0.6 and 0.5.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the tea leaves coated by Woelfel to have the claimed water activity, in light of the teachings of Schmidt.
Response to Arguments
The 112b and 102 rejections have been withdrawn in light of Applicant’s amendments made. The 103 rejections have been amended in light of Applicant’s amendments made. Applicant's arguments filed 2/17/2026 have been fully considered but they are not persuasive for the following reasons. Applicant argues that the primary reference of Woelfel teaches optional sweeteners in the coating, which teaches away from the claimed dry sweetened composition. The Examiner respectfully disagrees with Applicant’s position because, the fact that Woelfel teaches sweeteners may be added does not take away from the fact that sweeteners are taught to be added, therefore teaching a “sweetened composition”. Woelfel specifically teaches that water soluble agents provide sweetness to the composition (Paragraphs 48-50). As set forth previously, Woelfel teaches the coating composition includes an amount of sweetener and water-soluble matrix material within the claimed ranges, and also teaches such a coating on an insoluble food carrier such as those claimed, as Woelfel teaches such a coating on tea leaves, teaches the coated food carrier is dried, therefore teaching a dry sweetened composition by virtue of the claimed components taught. While Woelfel does not specifically teach the claimed amount of coating on the insoluble carrier based on the weight of sweetener composition, as preciously set forth, Woelfel teaches applying the coating and teaches benefits of tumble coating include high level of control over the tumbling motion, high level of control over the application of the liquid, viscosity control and/or ability to remove water to effectively form the film coating and teaches time ranges for the coating atomizing and tumbling until the substrate is sufficiently coated (Paragraph 78). Applicant discloses the mixture of coating can be sprinkled, sprayed through a nozzle on the food carrier (Page 14 of the specification), which is similar to what is taught in the prior art for applying the coating. The percentage of coating on the food carrier of Applicant does not appear to be critical or result in unexpected benefits. Therefore, the burden has been properly shifted to Applicant to show criticality of the claimed percentage of coating on the food carrier. Absent a teaching in this regard, the Examiner maintains the obviousness of optimizing the amount of coating on the substrate until a sufficiently coating level is attained, as set forth by the prior art, and for this reason, the office action is made final and deemed proper at this time.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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 JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/ Primary Examiner, Art Unit 1791 5/5/2026
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