DETAILED ACTION
Comments
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 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.
Claims 1-20 are pending and examined in the instant Office action.
Information Disclosure Statements
The IDSs filed have been considered.
Priority
The instant application is a continuation of application 16/405,050, filed on 5/7/2019. Application ‘050 is a continuation of application 15/247,554, filed on 8/25/2016. Application ‘554 claims benefit to provisional application 62/210,198, filed on 8/26/2015.
Application ‘198 does not have possession of cannabis or THC. Consequently, the benefit date of claims 1-20 is 25 August 2016 and NOT 25 August 2015.
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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea/law of nature/natural phenomenon without significantly more. Claims 1-9 are drawn to devices comprising at least one processor, claims 10-17 are drawn to methods, and claims 18-20 are drawn to non-transitory computer readable media.
In accordance with MPEP § 2106, claims found to recite statutory subject matter (Step 1 : YES) are then analyzed to determine if the claims recite any concepts that equate to an abstract idea, law of nature or natural phenomenon (Step 2A, Prong 1). In the instant application, the claims recite the following limitations that equate to an abstract idea:
The independent claims recite the mental step of receiving a spectroscopic measurement from the cannabis sample.
The independent claims recite the mental step of performing a qualitative classification of the cannabis sample.
The independent claims recite the mental step of performing a quantitative analysis of the cannabis sample by utilizing a quantification model related to the qualitative classification.
The independent claims recite the mental step of providing the results of the quantitative analysis of the cannabis sample.
Claims 2 and 19 recite the mental step of quantifying the THC content present at a threshold level.
Claims 3, 11, and 20 recite the mental step of using regression models to analyze data.
Claims 4 and 12 recite the mental step of using the second regression model for a second type of cannabis plant.
Claims 5, 13, and 20 recite the mental step of using data from cannabis plants grown both indoors and outdoors.
Claims 6 and 14 recite the mental steps of using a set of potential classes for the cannabis sample and a set of models that include the quantification model.
Claims 7 and 15 recite the mental step of using a classification model for a dry plant class or a concentrate class.
Claims 8 and 16 recite the mental step of using a quantification model for a tincture.
Claims 9 and 17 recite the mental step of using a local classification model that is based on a global classification model.
These recitations 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)), organizing and manipulating information through mathematical correlations in Digitech Image Techs., LLC v Electronics for Imaging, Inc. (758 F.3d 1344, 111 U.S.P.Q.2d 1717 (Fed. Cir. 2014)) and comparing information regarding a sample or test to a control or target data in Univ. of Utah Research Found. v. Ambry Genetics Corp. (774 F.3d 755, 113 U.S.P.Q.2d 1241 (Fed. Cir. 2014)) and Association for Molecular Pathology v. USPTO (689 F.3d 1303, 103 U.S.P.Q.2d 1681 (Fed. Cir. 2012)) that the courts have identified as concepts that can be practically performed in the human mind or mathematical relationships. Therefore, these limitations fall under the “Mental process” and “Mathematical concepts” groupings of abstract ideas. Merely reciting that a mental process is being performed in a generic computer environment does not preclude the steps from being performed practically in the human mind or with pen and paper as claimed. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then if falls within the “Mental processes” grouping of abstract ideas. As such, claim(s) 1-20 recite(s) an abstract idea/law of nature/natural phenomenon (Step 2A, Prong 1 : YES).
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). This judicial exception is not integrated into a practical application because the claims do not recite an additional element that reflects an improvement to technology or applies or uses the recited judicial exception to affect a particular treatment for a condition. Rather, the instant claims recite additional elements that amount to mere instructions to implement the abstract idea in a generic computing environment or mere instructions to apply the recited judicial exception via a generic treatment.
As such, these limitations equate to mere instructions to implement the abstract idea on a generic computer that the courts have stated does not render an abstract idea eligible in Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983. See also 573 U.S. at 224, 110 USPQ2d at 1984. As such, claims 1-20 is/are directed to an abstract idea/law of nature/natural phenomenon (Step 2A, Prong 2 : NO).
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). The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims recite additional elements that equate to mere instructions to apply the recited exception in a generic way or in a generic computing environment.
While the claims recite receiving spectroscopic measurements, there are no active limitations in the claims of using a spectrometer to perform measurements.
Claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983. See also 573 U.S. at 224, 110 USPQ2d at 1984. MPEP 2106.05(f) discloses that mere instructions to apply the judicial exception cannot provide an inventive concept to the claims. The additional elements do not comprise an inventive concept when considered individually or as an ordered combination that transforms the claimed judicial exception into a patent-eligible application of the judicial exception. Therefore, the claims do not amount to significantly more than the judicial exception itself (Step 2B : No). As such, claims 1-20 is/are not patent eligible.
Claim Rejections - 35 USC § 102
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-2, 10, and 18-19 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Blackley [US PGPUB 2016/0370337 A1].
Claim 10 is drawn to a method comprising receiving a spectroscopic measurement for a cannabis sample. The method comprises performing a qualitative classification of the cannabis sample. The method comprises performing a quantitative analysis of the cannabis sample based on the spectroscopic measurement and the qualitative classification. The method comprises providing one or more results of the quantitative analysis of the cannabis sample.
Claim 1 is drawn to similar subject matter as claim 10, except claim 1 is drawn to a device comprising a memory and at least one processor.
Claim 18 is drawn to similar subject matter as claim 10, except claim 18 is drawn to a non-transitory computer readable medium.
Claim 2 and 19 require calculating a THC level above a threshold.
The document of Blackley studies a analysis system for biological compounds [title]. Figure 15 of Blackley teaches the system with the computer and spectrometer. Paragraph 153 of Blackley teaches qualitative classification of the cannabis sample as being Jack Herer, Madman OG, Blueberry Kush, and/or Green Crack varieties. Figures 21-23 of Blackley illustrates quantitative spectra of the cannabis sample based on the spectra creation modelling technique of the spectrometers. Figure 19 of Blackley illustrates both providing the qualitative result of the strain of the cannabis and the quantitative result of the cannabis composition. Paragraph 64 and Table 1 of Blackley teach that one of the characteristics of the cannabis sample is the presence/absence of species of THC, and the THC level of each cannabis sample.
Claim Rejections - 35 USC § 103
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.
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.
35 U.S.C. 103 Rejection #1:
Claim(s) 1-4, 6, 9-12, 14, and 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blackley [US PGPUB 2016/0370337 A1] in view of Marcheret [US PGPUB 2015/0220853 A1; on IDS].
The dependent claims recite limitations with regard to regression models.
The document of Blackley studies a analysis system for biological compounds [title]. Figure 15 of Blackley teaches the system with the computer and spectrometer. Paragraph 153 of Blackley teaches qualitative classification of the cannabis sample as being Jack Herer, Madman OG, Blueberry Kush, and/or Green Crack varieties. Figures 21-23 of Blackley illustrates quantitative spectra of the cannabis sample based on the spectra creation modelling technique of the spectrometers. Figure 19 of Blackley illustrates both providing the qualitative result of the strain of the cannabis and the quantitative result of the cannabis composition. Paragraph 64 and Table 1 of Blackley teach that one of the characteristics of the cannabis sample is the presence/absence of species of THC, and the THC level of each cannabis sample.
Blackley does not teach limitations with regard to regression models.
The document of Marcheret studies techniques for evaluation, building, and/or retraining of a classification model [title]. Paragraph 31 of Marcheret teaches that the classification modeling involves regression models.
With regard to claims 3-4, 6, 11-12, and 14, paragraph 153 of Blackley teaches qualitative classification of the cannabis sample as being Jack Herer, Madman OG, Blueberry Kush, and/or Green Crack varieties/strains. Paragraph 31 of Marcheret teaches that the classification modeling involves regression models.
With regard to claims 9 and 17, paragraph 31 of Marcheret teaches that regression modeling is a local species of the global genus of classification modeling.
It would have been obvious to someone of ordinary skill in the art at the time of the effective filing date of the instant application to modify the qualitative and quantitative assessment of cannabis samples of Blackley by use of the regression modeling of Marcheret wherein the motivation would have been that regression is an additional mathematical and classification technique usable to analyze biological compounds [abstract and paragraph 31 of Marcheret]. There would have been a reasonable expectation of success apply different regression models of Marcheret to different strains of cannabis of Blackley because the regression modeling of Marcheret is robustly applicable and generally tunable to types of biological molecules, including the strains of cannabis of Blackley.
35 U.S.C. 103 Rejection #2:
Claim(s) 7-8 and 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blackley in view of Marcheret as applied to claims 1-4, 6, 9-12, 14, and 17-19 above, in further view of Goldring et al. [WO 2015/101992 A2].
Claims 7-8 and 15-16 are further limiting comprising either dry or concentrate classes of cannabis, and modeling a tincture.
Blackley and Marcheret make obvious applying regression models to spectral data from different strains of cannabis, as discussed above.
Blackley and Marcheret do not teach cannabis grown in different conditions.
The document of Goldring et al. studies spectrometry systems, methods, and applications [title]. Page 77, lines 10-22 of Goldring et al. teaches analysis of cannabis in concentrate (i.e. wet or tincture) or dried form.
It would have been obvious to someone of ordinary skill in the art at the time of the effective filing date of the instant application to modify the qualitative and quantitative assessment of cannabis samples of Blackley and the regression modeling of Marcheret by use of the cannabis in different conditions of Goldring et al. wherein the motivation would have been that Goldring et al. adds a variety to the types of cannabis that are spectrally analysis [page 77, lines 10-22 of Goldring et al.]. There would have been a reasonable expectation of success apply different regression models of Marcheret to different strains of cannabis of Blackley and cannabis grown in different conditions of Goldring et al. because the regression modeling of Marcheret is robustly applicable and generally tunable to types of biological molecules, including the strains of cannabis and conditions of cannabis (e.g. wet or dry).
35 U.S.C. 103 Rejection #3:
Claim(s) 5, 13, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blackley in view of Marcheret in view of Goldring et al. as applied to claims 1-4, 6-12, and 14-19 above, in further view of Sirkowski [US PGPUB 2012/0311744 A1].
Claims 5, 13, and 20 are further limiting comprising outdoor and indoor grown cannabis.
Blackley, Marcheret, and Goldring et al. make obvious applying regression models to spectral data from different strains and conditions of cannabis, as discussed above.
Blackley, Marcheret, and Goldring et al. do not teach cannabis grown outdoors and indoors.
The document of Sirkowski studies marked cannabis for indicating medical marijuana [title]. Paragraphs 270-271 of Sirkowski teach outdoor cannabis cultivation. Paragraphs 272-273 of Sirkowski teach indoor cannabis cultivation.
It would have been obvious to someone of ordinary skill in the art at the time of the effective filing date of the instant application to modify the qualitative and quantitative assessment of cannabis samples of Blackley, the regression modeling of Marcheret, and the cannabis in different conditions of Goldring et al. by use of the outdoor versus indoor cultivation of Sirkowski wherein the motivation would have been that Sirkowski adds a variety to the types of cannabis that are spectrally analysis [paragraphs 270-273 of Sirkowski]. There would have been a reasonable expectation of success apply different regression models of Marcheret to different strains of cannabis of Blackley and cannabis grown in different conditions of Goldring et al. and Sirkowski because the regression modeling of Marcheret is robustly applicable and generally tunable to types of biological molecules, including the strains of cannabis and conditions of cannabis (e.g. outdoor or indoor).
E-mail Communications Authorization
Per updated USPTO Internet usage policies, Applicant and/or applicant’s representative is encouraged to authorize the USPTO examiner to discuss any subject matter concerning the above application via Internet e-mail communications. See MPEP 502.03. To approve such communications, Applicant must provide written authorization for e-mail communication by submitting the following statement via EFS-Web (using PTO/SB/439) or Central Fax (571-273-8300):
Recognizing that Internet communications are not secure, I hereby authorize the USPTO to communicate with the undersigned and practitioners in accordance with 37 CFR 1.33 and 37 CFR 1.34 concerning any subject matter of this application by video conferencing, instant messaging, or electronic mail. I understand that a copy of these communications will be made of record in the application file.
Written authorizations submitted to the Examiner via e-mail are NOT proper. Written authorizations must be submitted via EFS-Web (using PTO/SB/439) or Central Fax (571-273-8300). A paper copy of e-mail correspondence will be placed in the patent application when appropriate. E-mails from the USPTO are for the sole use of the intended recipient, and may contain information subject to the confidentiality requirement set forth in 35 USC § 122. See also MPEP 502.03.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Russell Negin, whose telephone number is (571) 272-1083. This Examiner can normally be reached from Monday through Thursday from 8 am to 3 pm and variable hours on Fridays.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s Supervisor, Larry Riggs, Supervisory Patent Examiner, can be reached at (571) 270-3062.
/RUSSELL S NEGIN/ Primary Examiner, Art Unit 1686 25 September 2026
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