DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-8 are pending.
Claim 6 is withdrawn.
Claims 1-5 and 7-8 are examined.
Election/Restrictions
Claim 6 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/17/2025.
Claim Objections
Claims 1 and 2 are objected to because of the following minor informalities: there is a missing article between the recitation of “from” and “Cannabis plant” on line 3 in claim 1 and on line 2 in claim 2. Appropriate correction is required.
Drawings
Applicant submitted a petition on 1/10/2024 for color drawings to be accepted. The petition was granted on 2/14/2024.
Information Disclosure Statement
The listing of references in the specification, for example, in paragraphs 7, 25-26 and 32 is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Claim Interpretation
For the purpose of examination, Cannabis plant “BF2014” is interpreted to be an F1 hybrid of a cross between a plant of “Private Reserve OG” and a plant of “Thin Mint Cookies”, based on the context of the specification. On page 2, in paragraph 0011, the specification states “The new C. sativa variety is a selection resulting from a sexual cross of C. sativa plants at Cerritos, CA, in 2015, involving a seed parent known as ‘Private Reserve OG’ (unpatented) and a pollen parent known as ‘Thin Mint Cookies’.” and in paragraph 0014 “Asexual reproduction of the new variety by cutting propagation since 2014 at Cerritos, CA has demonstrated that the new variety reproduces true to type with all of the characteristics, as herein described, firmly fixed and retained through successive generations of such asexual propagation.” While the specification also states, in paragraph 0014, that “[a] stable seed line of each of the new varieties has also been developed by successive generations of inbreeding and selection to correspond to the phenotypic characteristics described herein. A stable seed line of the new variety has also been developed by successive generations of inbreeding and selection to correspond to the phenotypic characteristics described herein.” This appears to be describing an inbred line, which would be distinct from the F1 hybrid at least by homozygosity.
Furthermore, claim 1 recites “[a] seed from a Cannabis plant designated ‘BF2014’”. The seed is thus interpreted to encompass seed produced by a cross between “BF2014” and another Cannabis plant as well as a seed produced by selfing “BF2014”.
Claim Rejections - 35 USC § 112
Indefiniteness
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 1-5 and 7-8 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. All dependent claims are included in the rejections set forth below unless indicated otherwise.
Claims 1-3 are indefinite for their reference to Tables 1 and 2, which is an improper incorporation by reference. The claims must have the relevant information from the table recited within the claim where possible. As claims are to be complete in themselves, reference to a Table is only permitted in exceptional circumstances. As the table itself can be printed in a claim, this situation is not an exceptional circumstance as indicated in MPEP 2173.05(s).
Claim 1 is indefinite in the recitation of a “representative sample” because it is not clear which plant the seed is representing. In light of this indefiniteness regarding the cannabinoid and terpene profile of the claimed plants, and given that claim 1 is interpreted to encompass an F1 hybrid between “BF2014” and another Cannabis plant as well as a seed produced by selfing “BF2014” (which is interpreted to be an F1 hybrid itself) it is not clear which of these plants the seed of claim 1 is a “representative sample” of. It is not clear what traits are encompassed by a plant grown from said “representative sample”. It is not clear how a single seed deposit could be representative of such a large and variable genus. Therefore, the metes and bounds of the claims are not clear.
Claim 1 is indefinite in the recitation of " a Cannabis plant designated ‘BF2014’ wherein a representative sample of seed of said plant has been deposited under ______________" because the deposit accession information is missing. Because the claims are not currently tied to any deposits with valid accession numbers, the metes and bounds of said claims are not clear.
Claim 1 recites the limitation " wherein flower produced from Cannabis plant, or plant part, tissue, or cell thereof comprises a cannabinoid profile as set forth in Table 1, and a terpene profile as set forth in Table 2" in lines 2-4. There is insufficient antecedent basis for this limitation in the claim. The first line of the claim is drawn to “[a] seed from a Cannabis plant”, it does recite a “Cannabis plant, or plant part, tissue, or cell thereof”, therefore it is not clear which “Cannabis plant, or plant part, tissue, or cell thereof’ this limitation is drawn to. Examiner notes that the recitation of “Cannabis plant, or plant part, tissue, or cell thereof” also fails to recite any limitation drawn to a deposit. Furthermore, given the interpretation of claim 1 set forth above regarding the recitation of “[a] seed from a Cannabis plant designated ‘BF2014’”, the claimed seed may be a progeny of “BF2014” (which itself is interpreted to be an F1 hybrid), it isn’t clear how the characterization of the flower further defines the claimed seed.
Claims 3, 4, and 7 recite the limitation “The Cannabis plant of claim 1” on line 1. There is insufficient antecedent basis for this limitation in the claim. Claim 1 is drawn to a seed. Therefore, the metes and bounds of the claim are not clear. Examiner notes that this rejection could be obviated by amending the claims to recite the “The Cannabis plant of claim 2”.
Claim 5 recites the limitation “The Cannabis plant descended from the plant, or plant part, tissue, cell, or seed of claim 1” in line 1. There is insufficient antecedent basis for this limitation in the claim. Claim 1 drawn to a seed and does not recite any limitations drawn to descendants. Therefore, the metes and bounds of the claim are not clear. Examiner notes that this rejection could be obviated by amending the claim to recite the “The Cannabis plant descended from the plant, or plant part, tissue, cell, or seed of claim 2”.
Dependent claims fail to cure the deficiencies and are therefore also indefinite.
Written Description
Claims 1-5 and 7-8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Applicant claims “[a] seed from a Cannabis plant designated ‘BF2014’”, wherein flower produced from the plant comprises the cannabinoid profile set forth in Table 1 and the terpene profile set forth in Table 2. The seed encompass an F1 hybrid between “BF2014” and any another Cannabis plant as well as a seed produced by selfing “BF2014”, which appears to be a hybrid itself (see Claim Interpretation). This would encompass a nearly limitless number of F1 hybrids which would comprise an unknown and unbounded amount of genetic variation. Moreover, even if “BF2014” were selfed, it would produce progeny which segregate for all the traits present in the parental varieties of “BF2014”, of which Applicant provides no information beyond the trade name. In either case, this represents a vast genus of plants.
Applicant claims a cannabis plant, plant part, tissue, or cell thereof, produced by growing the seed of claim 1, or a descendent thereof, wherein flower produced from the plant comprises the cannabinoid profile set forth in Table 1 and the terpene profile set forth in Table 2. Examiner interprets “the plant” to encompass said descendent.
There are no limitations drawn to how the descendent is generated or how many generations removed from the plant of claim 1 said descendent is. Thus, a “descendent” as claimed by Applicant, would encompass, for example, a descendent plant generated by initially crossing the plant grown from the seed of claim 1 with a different cannabis plant, and then further crossing the initial progeny plant with a different cannabis plant for each of an additional 10 generations. Such a descendent would have very little genetic or phenotypic similarity to the “BF2014”. Further, as there are no limits regarding how such a descendent is produced, a descendent would encompass any plant with even the most distant relationship to the plant grown from the seed of claim 1.
Thus, Applicant’s claims are drawn to a very broad and variable genus of plants.
Applicant further claims said descendants, wherein the descendent is a clonal descendent. However, there are no limitations regarding which generation the clonal descendant is derived from, thus, said claimed plant encompasses the same genus described above.
Applicant has described a single Cannabis plant, “BF2014” (¶10, ¶14-16 and Tables 1 and 2).
Applicant has not described any other Cannabis plants, nor any descendants thereof, nor any F1 hybrids wherein flower produced from the plant comprises the cannabinoid profile set forth in Table 1 and the terpene profile set forth in Table 2
Applicant has not described any structural features that distinguish plants descended from Cannabis plant “BF2014”, or F1 hybrids of “BF2014”, from other Cannabis plants.
Regarding the cannabinoid profiles of Table 1 and terpene profile of Table 2, the claimed characteristics appear to be partly or wholly functional, rather than structural. Applicant states that the values represented in the table are “merely exemplary” and include “predicted normal variations of observed values” and that due to the natural variability of chemotypic expression in Cannabis, the values do not represent the only possible range of outcomes ((¶0024-25 and (¶0033). Thus, it appears there is not a strong correlation between genotype and phenotype. In other words, they are simply the function of the genetic characteristics of the plant in response to the environment or some other variable present in the location in which the plant was grown. However, functional characteristics that are subject to change based on environment or other reasons cannot serve as the basis to describe the invariable structural features common to members of the claimed genus.
These undescribed and possibly unknown effects mean that a plant of a given genotype may have the claimed phenotype(s) when grown under certain conditions and not under others, and that a plant of a given genotype would be encompassed by the claims when grown under certain conditions and not when grown under others. Thus, the public would not know when they are infringing or when they might infringe the claimed plants.
Because the phenotypic manifestations of the gene(s) that confer this trait are affected by these conditions, the gene(s) (i.e., structures) that confer these traits must be described. They are not. The structural features that distinguish Cannabis plants with the gene(s) that confer the cannabinoid profile of Table 1 and terpene profile of Table 2 from other Cannabis plants are not described in the specification.
Further, in light of the specification, it is not clear what the cannabinoid and terpene profile of a plant with the profiles of Tables 1 and 2 would encompass, or what combination of cannabinoid and terpene levels, given the broad and variable values presented in the tables and accompanying disclosures. Applicant provides no upper or lower bounds—they seem to be almost completely open-ended.
Applicant does not describe the genus of plants as broadly claimed. The single described embodiment is not representative of the breadth of the claimed genus (which encompasses a vast number of undescribed plants descended and derived from “BF2014” with apparently any combination of described and undescribed cannabinoid and terpene levels), and applicant has not provided an adequate description of the structure-function relationship such that one of ordinary skill in the art would be able to envision which Cannabis plants are members of the claimed genus and which are not. Therefore, Applicant does not appear to have been in possession of the claimed genus of Cannabis plants at the time this application was filed.
Missing Breeding History
Claims 1-5 and 7-8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
MPEP 2163 section (I) states “Compliance with the written description requirement is essentially a fact-based inquiry that will ‘necessarily vary depending on the nature of the invention claimed.’" Enzo Biochem, 323 F.3d at 963, 63 USPQ2d at 1612.” In this case, the nature of the invention claimed is the creation of a new sweet corn hybrid “SVSD6316” and its parent lines SHY-6S18-3512GG and SYY-6S19-8202KK. It is well established that a plant is defined by its phenotype (traits) and its genotype (breeding history). Applicant has not provided any information on the genotype of “SVSD6316” other than its parent lines, which Applicant has not provided any information regarding their genotypes, and thus fails to provide an adequate written description of the claimed invention. Specifically, the instant application is silent as to the breeding history used to produce the claimed plant variety.
Additionally, the instant Specification fails to satisfy the written description requirement of 35 U.S. Code § 112(a) because it does not provide a description sufficient to conduct an examination, including search of the prior art, nor does it provide enough description to be sufficient to aid in the resolution of questions of infringement.
MPEP 2163 (I) states “The written description of the deposited material needs to be as complete as possible because the examination for patentability proceeds solely on the basis of the written description. See, e.g., In re Lundak, 773 F.2d 1216, 227 USPQ 90 (Fed. Cir. 1985); see also 54 Fed. Reg. at 34,880 ("As a general rule, the more information that is provided about a particular deposited biological material, the better the examiner will be able to compare the identity and characteristics of the deposited biological material with the prior art.").”
MPEP 2163(I) states “The description must be sufficient to permit verification that the deposited biological material is in fact that disclosed. Once the patent issues, the description must be sufficient to aid in the resolution of questions of infringement." Id. at 34,880.)” (Quoting the Deposit of Biological Materials for Patent Purposes, Final Rule, 54 Fed. Reg. 34,864 (August 22, 1989) at 34,880).
The criticality of a breeding history in assessing the intellectual property rights of a plant is well recognized in the field of plant breeding. With regard to Plant Patents, MPEP 1605 states that a complete detailed description of a plant includes “the origin or parentage”. Other bodies that grant intellectual property protection for plant varieties require breeding information to evaluate whether protection should be granted to new varieties. A breeding history, including information about parentage and breeding methodology, is part of the requirements of Plant Variety Protection (PVP) applications. That information is used to “determine if development is sufficient to consider the variety new” (See “Applying for a Plant Variety Certificate of Protection” by the USDA reference to Exhibit A). Additionally, the International Union for the Protection of New Varieties of Plants (UPOV) considers breeding history and methodology part of its evaluation of essentially derived plant varieties (See UPOV EDV Explanatory Notes 14 and 30). While the USPTO, USDA, and UPOV have different laws governing intellectual property rights, all recognize that a breeding history is an essential part of adequate description of the plant sought to be protected.
The breeding history is also necessary to aid in the resolution of patent infringement by providing information necessary to determine whether differences in plants where genetic differences, differences caused by the environment, or differences within the accepted variation within a variety. Historically, the USPTO has considered breeding history information when determining the patentability of a new plant variety. (See Ex Parte C (USPQ 2d 1492 (1992) and Ex Parte McGowen- Board Decision in Application 14/996,093). In both of these cases, there were many differences cited by the applicant when comparing the prior art and the new plant variety. However, because the breeding history was available, these differences were deemed to be obvious and within the natural variation expected in a backcrossing breeding process. Without a breeding history in these cases, a complete comparison with the prior art could not have been possible.
Moreover, a specification devoid of a breeding history hampers the public’s ability to resolve infringement analysis with plants already in the prior art as well as plants that have not yet been patented. Because the instant specification lacks the breeding history, the public will not be able to fully resolve questions of infringement. Since the breeding history, including the parents, is not known to the public, the public could only rely on the phenotypes of the claimed plants for assessing potential infringement.
As seen above in Ex Parte C and Ex Parte McGowan, a trait table is insufficient to differentiate varieties by itself. It has been long established that intracultivar heterogeneity exists in crop species. Haun teaches that the assumption that elite cultivars are composed of relatively homogenous genetic pools is false. (See Haun; page 645, left column). Segregation, recombination, DNA transposition, epigenetic processes, and spontaneous mutations are some of the reasons elite cultivar populations will maintain some degree of plant-to-plant variation. (See Haun; page 645, right column and page 646, left column). In addition to genetic variation, environmental variation may lead to phenotypic variation within a cultivar. (See Großkinsky; page 5430, left column, 1st full paragraph and right column, 2nd full paragraph). In view of this variability, a breeding history is an essential and the least burdensome way to provide genetic information needed at adequate describe a newly developed plant.
Thus, an application that does not clearly describe the breeding history does not provide an adequate written description of the invention.
To overcome this rejection, applicant must amend the specification/drawing to provide the breeding history used to develop the instant variety or cultivar. When identifying the breeding history, applicant should identify any and all other potential names for all parental lines utilized in the development of the instant variety. For example, if applicant’s breeding history uses proprietary line names, applicant should notate in the specification all other names of the proprietary lines, especially publicly disclosed or patented line information. If the breeding history encompasses a locus conversion or a backcrossing process, applicant should clearly indicate the recurrent parent and the donor plant and specifically name the trait or transgenic event that is being donated to the recurrent parent. If one of the parents is a backcross progeny or locus converted line of a publicly disclosed line, applicant should provide the breeding history of the parent line as well (i.e. grandparents).
Applicant is also reminded that they have a duty to disclose information material to patentability. Applicant should also notate the most similar plants which should include any other plants created using similar breeding history (such as siblings of the instant variety).
Enablement
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-5 and 7-8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Because the claimed variety is a hybrid, the claims require seeds of parent line ‘Private Reserve OG’ and ‘Thin Mint Cookies’. Since the seeds claimed are essential to the claimed invention, they must be obtainable by a repeatable method set forth in the specification or otherwise be readily available to the public. If a seed is not so obtainable or available, a deposit thereof may satisfy the requirements of 35 U.S.C. 112. The specification does not disclose a repeatable process to obtain the exact same seeds in each occurrence and it is not apparent if such a seed is readily available to the public. It is noted that Applicant asserts that a deposit of representative seeds of the instant variety will be made but the deposits lack any identifying deposit numbers and does not appear to have been made yet (¶0022; ¶0038-0039).
Further, if the deposit of these seeds is made under the terms of the Budapest Treaty, then an affidavit or declaration by the Applicant, or a statement by an attorney of record over his or her signature and registration number, stating that the seeds will be irrevocably and without restriction or condition released to the public upon the issuance of a patent would satisfy the deposit requirement made herein. A minimum deposit of 625 seeds is considered sufficient in the ordinary case to assure availability through the period for which a deposit must be maintained.
If the deposit has not been made under the Budapest Treaty, then in order to certify that the deposit, meets the requirements set forth in 37 CFR 1.801-1.809, Applicant may provide assurance of compliance by an affidavit or declaration, or by a statement by an attorney of record over his or her signature and registration number showing that
(a) During the pendency of the application, access to the invention will be afforded to the Commissioner upon request;
(b) All restrictions upon availability to the public will be irrevocably removed upon granting of the patent;
(c) The deposit will be maintained in a public depository for a period of 30 years or 5 years after the last request or for the enforceable life of the patent, whichever is longer; and
(d) Evidence will be provided of the test of the viability of the biological material at the time of deposit (see 37 CFR 1.807).
In addition, the identifying information set forth in 37 CFR 1.809(d) should be added to the specification. See 37 CFR 1.801 - 1.809 [MPEP 2401-2411.05] for additional explanation of these requirements.
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 (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 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.
(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.
A. Claims 1-4, are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Vinkovetsky (Vinkovetsky, D. “Behind The Strain: Kush Mountains”. Leaf Magazines. 11/13/2021), taken with evidence of Cannabiotix (https://www.cannabiotix.com/strain/blue-flame-og. Accessed 12/16/2025) and the instant Specification.
Applicant claims a seed from a Cannabis plant designated “BF2014” and parts thereof.
Vinkovetsky discloses Cannabis variety “Blue Flame OG”. Cannabiotix provides Cannabis hybrid “Blue Flame OG” has parent lines “Thicc Mint Cookies” and “Private Reserve OG”. While applicant does not disclose any other names of “BF2014”, given the “BF” in “BF2014”, that Cannabiotix seems to be the same entity as Applicant, i.e., Cbiotix LLC, the similar names of the parent lines disclosed by Cannabiotix and in the instant specification, i.e., “Thin Mint Cookies” and “Private Reserve OG”, the preponderance of evidence suggests that the instantly claimed “BF2014” and “Blue Flame OG” disclosed by Cannabiotix are one and the same.
Such a plant would produce seed and comprise flowers/flower buds, stems trichomes, and leaves.
Therefore, the disclosure of Vinkovetsky taken with evidence of Cannabiotix and the instant Specification anticipates claims 1-4.
B. Claims 7-8, are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Margalit (US20230087321A1).
Claims 7 and 8 are drawn to an extract made from the Cannabis plant of claim 1 and a product made from or comprising the extract.
Margalit discloses an extract from a Cannabis plant and a product thereof (Claim 84).
There is no structure that would distinguish the extract of a plant from claim 1 and a product made therefrom from an extract made from another Cannabis plant, and a product comprising the extract such as the extract from the Cannabis plant disclosed by Margalit. Therefore, the disclosure of Margalit anticipates instant claims 7 and 8.
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.
Claims 5 and 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Vinkovetsky (Vinkovetsky, D. “Behind The Strain: Kush Mountains”. Leaf Magazines. 11/13/2021) in view of Poyatos et al (2020, Medicina 56: 309, pages 1-21) taken with evidence of Cannabiotix (Cannabiotix. https://www.cannabiotix.com/strain/blue-flame-og. Accessed 12/16/2025) and the instant Specification.
The claims are drawn to a clonal descendent of the seed of claim 1, an extract of the plant of claim 1, a product comprising said extract, and a method of breeding a Cannabis plant using a plant grown from a seed or clone of cannabis plant “BF2014”.
The teachings of Vinkovetsky as applied to claim 1 are set forth above. As explained above, “BF2014” and “Blue Flame OG” appear to be the same plant.
Poyatos et al teaches that cannabis oils have become the preferred consumption option for therapeutic use and that edible cannabis and vaporization are the most common consumption modes for medical cannabis users (page 2, section 1.2 Therapeutic uses of Cannabis). Poyatos et al teaches that smoking cannabis may be associated with respiratory diseases and smoked cannabis contains several toxins and carcinogens also found in tobacco smoke; that no country that has authorized medical use of cannabis recommends smoking as a consumption method; and that vaporizing cannabis extracts avoids the production of the pyrolytic compounds derived from the combustion of the dried flower or extract (page 2, section 1.3, Oral Cannabis and THC and Other Routes of Administration). Poyatos et al further teaches that “from a therapeutic perspective, oral cannabis intake is promising due to its long-lasting drug effects, easy administration, and reduced toxicity derived from pyrolytic by-products” (page 3, section 1.3, Oral Cannabis and THC and Other Routes of Administration).
Regarding claim 5, at the time of filing it would have been obvious to one having ordinary skill in the art to produce a clone of a cannabis plant of “BF2014” as this is a widespread and common practice in the cultivation of psychoactive cannabis. One would have a reasonable expectation of success given that this is both widely and commonly practiced and given the skill level in the art.
Regarding claims 7 and 8, at the time of filing it would have been obvious to one of ordinary skill in the art to make an extract of a cannabis plant of “BF2014” and to make a product comprising said extract given the teachings of Poyatos et al regarding the medicinal benefits of such extracts and products relative to inhaling combusted cannabis flowers and given the preference of therapeutic users to consume cannabis either by using a vaporizer or by ingestion. One would have a reasonable expectation of success given the skill level of one in the art and given that producing extracts and products comprising said extracts is a widespread and common practice in the art.
Prior art not relied upon
The following prior art is made of record but was not relied upon in the rejections above. Cannabiotix has published Blue Flame OG at least as early as 8/15/2022, accessed using the Wayback Machine. (https://web.archive.org/web/20220815103055/https://www.cannabiotix.com/flower/blue-flame-og).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID R BYRNES whose telephone number is (571)270-3935. The examiner can normally be reached 9:00 - 5:00 M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joe Zhou can be reached at (571) 272-0724. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DAVID R BYRNES/Examiner, Art Unit 1662