DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
2. The office action is in response to Applicant’s amendment filed on 07/17/2026.
Claims 1, 3-5 and 9-10 are pending.
Claims 1, 3-5 and 9 are amended.
Claims 2, and 6-8 are cancelled.
The objections of claims 3 and 9 for informalities are withdrawn due to claim amendments.
The 35 U.S.C. 112(b) rejection of claim 5 is withdrawn due to amendment of the claim.
The 35 U.S.C. 112(b) rejections of claims 2, and 6-8 are withdrawn due to cancellation of the claims.
Response to Arguments
3. Applicant's arguments, see page 5, filed 07/17/2026, with respect to the 112(b) rejection of claim 1 and 5 for being indefinite have been fully considered and they are persuasive. The clarification by the Applicant remedies any potential ambiguities.
Applicant' s arguments, see pages 5-9, filed 07/17/2026, with respect to the 103 rejection of claim 1 over Rousseau, and with respect to the 103 rejection of claim 5 over Rousseau in view of Latimer have been fully considered but they are not persuasive.
On pages 6-7, the Applicant has amended claim 1 to include limitations that were previously presented. Specifically, the Applicant has amended claim 1 by incorporating previously presented limitations from claim 2, and argues that Rousseau does not disclose any of these limitations.
The Examiner respectfully disagrees. The Examiner maintains that Rousseau teaches a reconstituted plant material (i.e., solid carrier) ([0013]; [0024]; [0084]; [0214]). Rousseau’s solid carrier includes plant fibers such as tobacco, cannabis (hemp), cocoa shells and herbal plants ([0067]). Solid carrier further comprises herbal plant materials such as tea leaf, coffee, cucumber, mint, wheat etc. ([0063]).
Furthermore, the Applicant has amended claim 1 by incorporating previously presented limitations from claims 6-8 and argues that Rousseau doesn’t disclose specific mass ratio of cannabidiol, hemp, propylene glycol, glycerol, edible essence and flavor, and the solid carriers.
The Examiner respectfully disagrees. The Examiner maintains that Rousseau teaches the amount of cannabidiol, hemp, propylene glycol, glycerol, edible essence and flavor, and the solid carriers in percentage by weight. See Rousseau’s disclosure provided in the 103 rejection below.
On pages 8, in regards to previously presented claim 5, the Applicant further argues that Latimer does not disclose the specific components and mass ratio of each component of the CBD composition for a heat-not-burn atomization product as recited in amended claim 1.
Latimer is not being used to teach the specific components and mass ratio of each component of the CBD composition for a heat-not-burn atomization product. Latimer is being used as a secondary reference to teach a moisture level of dried hemp as being between 10% to 15% in which the range overlaps the claimed moisture content of dried hem being less than 15%. The primary reference, Rousseau, discloses the specific components and weight percentage of each component of the CBD composition for a heat-not-burn atomization product. This disclosure is presented again in the rejection of claim 1. Amended claim 5 rejection is also provided below. Therefore, the argument regarding Latimer is not persuasive and the rejection of claim 5 is maintained.
The following is a modified rejection based on Applicant’s amendments made to the claims.
Claim Rejections - 35 USC § 112
4. 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.
5. Claims 1, 3-5 and 9-10 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.
Claim 1 is rejected for being indefinite. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05 (c). In the present instance, claim 1 recites the broad recitation of a cannabidiol content of 0.5%-30 wt% and the claim also recites 5 parts-15 parts by weight of the cannabidiol content which is a narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question of doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
For purposes of examination, the claim is being interpreted as a cannabidiol content of 5 parts-15 parts by weight.
Claim 1 is also unclear if propylene glycol, glycerol, edible essence and flavor are optional or required parts of the CBD composition. The claim language "wherein the CBD composition for a heat-not-burn atomization product further comprises hemp, and at least one of propylene glycol, glycerol and edible essence and flavor" directs that these limitations are optional elements in the CBD composition, but claim 1 also recites the specific amount of these elements and appears to require previously optional elements.
For purposes of examination, at least one of propylene glycol, glycerol, edible essence and flavor are being interpreted as required elements of the CBD composition.
Claims 3-5 and 9-10 are also rejected under 35 U.S.C. 112(b) by virtue of their dependency on claim 1.
Claim Interpretation
Regarding amended claim 1, the claim recites “5 parts-15 parts of the cannabidiol, 5 parts-50 parts of hemp, 1 part-20 parts of propylene glycol, 1 part-20 parts of glycerol, 1 part-30 parts of edible essence and flavor, and 5 parts-30 parts of the solid carriers”. According to the instant specification, examples 1-8 ([0042] – [0070]), describes “CBD composition for a heat-not-burn atomization product includes, in percentage by weight:”, and continues to recite “12% of cannabidiol, 45% of hemp…” ([0071]). Thus, under broadest reasonable interpretation, “parts” is considered to be percent (%) and that “in parts by weight” is considered to be percent by weight or weight percent.
Claim Rejections - 35 USC § 103
6. 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.
7. 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.
8. 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.
9. Claims 1, 3-4 and 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Rousseau et al. (US-20200253269-A1).
Regarding claim 1, Rousseau directed to an aerosol generating material comprising a blend of at least two plant fibers (Abstract), discloses a smoking article (i.e., aerosol generating material) that includes a heating device to heat the aerosol generating material for producing an inhalable aerosol without burning (heat-not-burn) the aerosol generating material ([0018]).
Rousseau further discloses a cannabidiol (CBD) composition ([0040]; [0050]) for a heat not burn atomization product ([0018]), the composition comprising mixtures including cannabidiol ([0050]), a reconstituted plant material (i.e., solid carrier) ([0013]; [0024]; [0084]; [0214]), which is in line with the Applicant’s instant specification for what a solid carrier is. Rousseau further discloses that the solid carrier includes plant fibers such as tobacco, cannabis (hemp), cocoa shells and herbal plants ([0067]). Solid carrier further comprises herbal plant materials such as tea leaf, coffee, cucumber, mint, wheat etc. ([0063]).
Rousseau further discloses a CBD composition comprising an aerosol delivery agent, cannabidiol ([0024]), is present in an amount ranging between 1% -50% by weight ([0210] – [0211]). The range disclosed by the prior art overlaps the claimed range of cannabidiol content ranging from 5 parts to 15 parts by weight, and is therefore considered prima facie obvious.
Rousseau further discloses a CBD composition comprises hemp ([0040]; [0200]) and at least one of propylene glycol, glycerol ([0091] - [0093]) and edible essence and flavor ([0109]; [0123]).
Rousseau further teaches solid carriers as web building fibers such as tobacco fibers, hemp, wood, flax, coconut fibers etc. ([0206] - [0209]), in an amount ranging from 3% to 50% by weight ([0209]). The range disclosed by the prior art overlaps the claimed range of the solid carrier in percent by weight of 5%-30%, and is therefore considered prima facie obvious. Rousseau further discloses that an amount of tobacco material ranging from 2%-50% by weight can be added as a filler to the solid carrier in an aerosol delivery composition ([0104] – [0105]).
Rousseau further teaches various embodiments of composition prep for a smoking article to be used in a heat-not-burn aerosol generating device [(0146]). Examples of these sample preparations expressly teach an amount of 15% glycerin (glycerol) added to an aerosol delivery composition ([0189]; [0196]). Rousseau additionally teaches a CBD composition comprising a humectant ([0091]- [0093]). The humectant includes glycerol, propylene glycol, or mixtures thereof. The humectant is incorporated into the solid carrier, and serves as an aerosol generating agent that facilitates formation of an aerosol when the solid carrier is heated without being combusted ([0093]). The humectant is incorporated into the solid carrier in amount between 0.5% by weight and 50% by weight ([0093]). The range disclosed by the prior art overlaps the claimed ranges of each propylene glycol and glycerol being 1%-20%, in percent by weight, and is therefore considered prima facie obvious.
Rousseau further teaches flavoring can be applied to the solid carrier in a manner such that the amount of compound contained in an aerosol generated by the material is uniform and consistent from puff to puff ([0103]). Rousseau teaches that the aerosol delivery composition containing an aerosol delivery agent comprises edible essence and flavor [(0210)] in an amount ranging from 1% to 50% by weight ([0211]). The range disclosed by the prior art overlaps the claimed range of hemp in parts by weight of 1%-30 %, in percent by weight of edible essence and flavor, and is therefore considered prima facie obvious.
Regarding claim 3, Rousseau teaches “the aerosol generating material can be cut, shredded, or otherwise processed into a form best suited for the particular application and product” ([0066]). Rousseau further teaches the aerosol generating filler may contain loose pieces (fragments) of the reconstituted plant material ([0083]).
Rousseau further discloses the reconstituted plant material is ground or cut to a desired size. ([0127]).
Regarding claim 4, Rousseau teaches a composition comprising a hemp ([0040]), ([0010]), ([0056]) wherein the hemp comprises flowers, leaves, roots or stems of the hemp ([0008]; [0019]; [0056]).
Regarding claim 9, Rousseau teaches an aerosol generating composition includes a reconstituted plant material formed from at least one of extracted cannabis fibers and the reconstituted plant material may then be blended with at least one of a tobacco material and an herbal material ([0051]). Rousseau further discloses a cannabinoid, such as CBD, can be formulated into a water-soluble form or powder that can be applied to the reconstituted plant material as a solution or aqueous suspension ([0113]). Additionally, the aerosol generating material can comprise a reconstituted plant material blended with another material ([0212]).
Regarding claim 10, Rousseau teaches an aerosol generating composition can be incorporated into devices that heat the material without burning the material ([0018]; [0066]). “In an embodiment, any of the aerosol generating materials described above can be used in a heat but not burn device” ([ 0216]).
10. Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Rousseau as applied to claim 1 above, and further in view of Latimer (ISBN 9780197610145).
Regarding claim 5, Rousseau teaches a CBD composition comprising hemp, but does not explicitly disclose the hemp is dried to a moisture content less than 15%.
Latimer directed to drying field-fresh hemp samples to a targeted moisture level (5.0 Summary and Conclusions), discloses drying hemp plant to reduce its moisture content to a level of 10 to 15% (Section 1.0 objective). Latimer further teaches 15% moisture content of hemp as drying endpoint for usable material (Section 3.0 Intro and Background).
Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art at the time of invention to modify the hemp material used in the CBD composition of Rousseau to have a moisture content below 15% as taught by Latimer. Such modification would have been motivated by Latimer’s known teaching of drying hemp material to a targeted moisture content below 15%, and applying this teaching to Rousseau’s teaching of using processed hemp to yield predictable results.
Conclusion
11. The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure.
Gielchinsky et al. (US 20220046978 A1), directed to measuring a moisture level of a plant material for use in cigarette rolls (Abstract), discloses a process for measuring the moisture level of hemp plant material to be used in cigarette making ([0015]). Gielchinsky further disclosed, a target range for moisture content of hemp plant material is in a range between 9.5% to 11.5% by weight ([0061]).
Embury et a. (US 20210315262 A1) directed to preparation of reconstituted cannabis/hemp by processing hemp plant material (Abstract), discloses utilizing thin sheets of reconstituted hemp can be included in pods or dry material to provide a combination of CBD and nicotine to the user ([0059]).
Embury further discloses that the sheet of reconstituted hemp exits the dryer having a moisture content between 8%-10% ([0048]).
12. Applicant's amendment necessitated the modified 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.
13. Any inquiry concerning this communication or earlier communications from the examiner should be directed to whose telephone number is (571)270-0196. The examiner can normally be reached on 8am-5pm.
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, Philip Louie can be reached at 5712701241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HELEN GHEBRESELASSIE/ Examiner, Art Unit 1755
/PHILIP Y LOUIE/ Supervisory Patent Examiner, Art Unit 1755
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