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 .
This office action is in response to the amendment filed on April 8th, 2026. The applicant has
canceled claims 29-48, and added new claims 49-74. Claims 28 and 49-74 are pending and are under examination.
Any objections or rejections not reiterated below are hereby withdrawn.
Information Disclosure Statement
The information disclosure statement (IDS) filed February 22nd, 2026 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because of illegible text in documents D2 and D3, likely caused by insufficient scanning resolution and/or the conversion of color to black-and white. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
The information disclosure statement (IDS) filed February 25, 2026 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because of pieces of text in the document being cut-off or occluded by other webpage elements or features. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
The information disclosure statement (IDS) submitted on February 28th, 2026 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Drawings
The drawings were received on August 13th, 2023. These drawings are acceptable.
Withdrawal of Rejections
Applicant’s arguments filed April 8th, 2026, with respect to claim 28 under 35 U.S.C. 102(a)(1) as being anticipated by Ragot et al. (US 20150037389 A), abbreviated “Ragot”, have been fully considered and are persuasive. The rejection of claim 28 under 35 U.S.C. 102(a)(1) has been withdrawn. Ragot does not disclose extracting a hydrophobic psychoactive compound from cannabis using an aqueous solvent.
Applicant’s arguments filed April 8th, 2026, with respect to claim 28 under 35 U.S.C. 103 as being obvious over Ragot (US 20150037389 A) and further in view of Cunningham (J. Nat. Prod. 2019, 82, 636−646) have been fully considered and are persuasive. The rejection of claim 28 under 35 U.S.C. 103 by Ragot and Cunningham has been withdrawn. Neither Ragot nor Cunningham disclose extracting a hydrophobic psychoactive compound from cannabis using an aqueous solvent.
Applicant’s arguments filed April 8th, 2026, with respect to claim 28 under 35 U.S.C. 103 as being obvious over Ragot (US 20150037389 A), and further in view of Wirth et al. (J. Pharm. Sci. 1980, 69 (11), 1359-1360), abbreviated “Wirth”, and Beutler and Der Marderosian (Economic Botany 1978, 32 (4), 387-394), abbreviated “Beutler”, have been fully considered and are persuasive. The rejection of claim 28 under 35 U.S.C. 103 by Ragot, Wirth, and Beutler, has been withdrawn. Neither Ragot, Wirth, nor Beutler, disclose extracting a hydrophobic psychoactive compound from cannabis using an aqueous solvent.
Applicant’s arguments filed April 8th, 2026, with respect to claim 28 under 35 U.S.C. 103 as being obvious over Ragot (US 20150037389 A) and further in view of Ju (KR 20170064729 A) have been fully considered and are persuasive. The rejection of claim 28 under 35 U.S.C. 103 by Ragot and Ju has been withdrawn. Neither Ragot nor Ju disclose extracting a hydrophobic psychoactive compound from cannabis using an aqueous solvent.
Applicant’s arguments filed April 8th, 2026, with respect to claim 28 under 35 U.S.C. 103 as being obvious over Ragot (US 20150037389 A) and further in view of Wang et al. (Molecules 2015, 20 (1), 430–445), abbreviated “Wang”, have been fully considered and are persuasive. The rejection of claim 28 under 35 U.S.C. 103 by Ragot and Wang has been withdrawn. Neither Ragot nor Wang disclose extracting a hydrophobic psychoactive compound from cannabis using an aqueous solvent.
Applicant’s arguments filed April 8th, 2026, with respect to claim 28 under 35 U.S.C. 103 as being obvious over Ragot (US 20150037389 A) and further in view of Kim et al. (KR 860001349 B1), abbreviated “Kim”, have been fully considered and are persuasive. The rejection of claim 28 under 35 U.S.C. 103 by Ragot and Kim has been withdrawn. Neither Ragot nor Kim disclose extracting a hydrophobic psychoactive compound from cannabis using an aqueous solvent.
In consideration of the new rejection below, the applicant’s arguments are no longer relevant to the pending rejection.
Pending Objections and Rejections
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
The disclosure is objected to because of the following informalities: the specification does not recite the units of the horizontal and vertical axes for the graphs in Figures 8A-.
Appropriate correction is required.
The use of the terms Ball, Kingsford, Weber, Home Depot, Green Flash, Crock Pot, Jack Daniel's, Johnny Walker, Longship Brewery, Abomination, Instant Pot, GrowlerWerks, Jim Beam, Protector Brewery, and Bigelow, each of which is a trade name or a mark used in commerce, has been noted in this application. Each term should be accompanied by the generic terminology; furthermore, each term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claims 50-53 are objected to because of the following informalities: the abbreviations "THC", "CBD", and "CBN" should be introduced alongside their unabbreviated chemical names for clarity. Appropriate correction is required.
Claims 55 and 56 are objected to because of the following informalities: the species name "sativia" should be changed to "sativa" for correct spelling. Appropriate correction is required.
Claims 55-58, 73, and 74 are objected to because of the following informalities: the scientific names of species of organisms should be italicized. Appropriate correction is suggested.
Claim Interpretation
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The terms “bulk solvent” and “bulk aqueous solvent” are interpreted as reciting no limitation regarding the number of phases in the solvent (instant specification, page 21, under subheading K. Bulk Solvent). Claims 59 and 60 recite “said at least one aqueous solvent”; therefore, they are read as further limiting the aqueous solvent recited in independent claim 28 step b), not the “at least one bulk aqueous solvent” recited in claim 28 step f). The term “reaction mixture” is not explicitly defined in the claims or the instant specification as excluding non-water solvent species besides ethanol, so this exclusion is not read into the term. The term “hydrophobic” is interpreted as encompassing compounds that are reasonably more soluble in a non-polar than a polar solvent, given a mostly non-polar structure; therefore, the cannabinoids THC, CBD, and CBN are considered hydrophobic.
Claim Rejections - 35 USC § 112
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 65-69 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.
The term “about” in claims 65-69 is a relative term which renders the claim indefinite. The term “about” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Temperatures, pressures, and times suitable to the extraction process have been rendered indefinite by the use of the term "about".
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 28 and 49-70 are rejected under 35 U.S.C. 103 as being unpatentable over Ragot (US 20150037389 A1) and further in view of Xavier (CA 3089490 A1), Vu et al. (US 20180344684 A1), abbreviated "Vu", and Tucker (US 9956498 B1).
Claim 28 recites: A method of making a psychoactive extract of cannabis, comprising:
a) providing at least one sample comprising cannabis;
b) providing at least one aqueous solvent; wherein said at least one aqueous solvent does not include ethanol;
c) providing at least one sealed container;
d) providing at least one heat source;
e) providing at least one pressure source;
f) contacting said at least one sample comprising cannabis with said at least one aqueous solvent in said at least one sealed container to provide at least one reaction mixture comprising at least one bulk aqueous solvent; wherein said at least one reaction mixture does not include ethanol;
further wherein said at least one bulk aqueous solvent does not include ethanol; exposing said at least one container with said at least one reaction mixture to at least one of:
1) heat from said at least one heat source;
2) pressure from said at least one pressure source;
g) reacting said at least one reaction mixture under a regime of conditions comprising:
1) temperature,
2) pressure, and
3) time;
to provide at least one psychoactive extract of cannabis that does not include ethanol;
wherein said at least one psychoactive extract of cannabis comprises at least one hydrophobic psychoactive compound from cannabis.
Claim 49 recites “The method of claim 28, wherein said at least one psychoactive extract of cannabis is intoxicating”. Claim 50 recites “The method of claim 28, wherein said psychoactive extract of cannabis comprises at least one of THC, CBD, CBN, at least one Terpene, or any combinations thereof”. Claim 51 recites “The method of claim 28, wherein said psychoactive extract of cannabis comprises THC”. Claim 52 recites “The method of claim 28, wherein said psychoactive extract of cannabis comprises CBD”. Claim 53 recites “The method of claim 28, wherein said psychoactive extract of cannabis comprises CBN”. Claim 54 recites “The method of claim 28, wherein said psychoactive extract of cannabis comprises at least one Terpene”. Claim 55 recites “The method of claim 28, wherein said at least one sample comprising cannabis comprises at least one of Cannabis sativia, Cannabis indica, Cannabis ruderalis, or any combinations thereof”. Claim 56 recites “The method of claim 28, wherein said at least one sample comprising cannabis comprises Cannabis sativia”. Claim 57 recites “The method of claim 28, wherein said at least one sample comprising cannabis comprises Cannabis indica”. Claim 58 recites “The method of claim 28, wherein said at least one sample comprising cannabis comprises Cannabis ruderalis”. Claim 59 recites “The method of claim 28, wherein said at least one aqueous solvent is water”. Claim 60 recites “The method of claim 28, wherein said at least one aqueous solvent is filtered water, purified water, tap water, or any combination thereof”. Claim 61 recites “The method of claim 28, wherein said at least one sealed container is substantially airtight, airtight, or any combination thereof, when in operation”. Claim 62 recites “The method of claim 28, wherein said at least one sealed container comprises a pressure cooker”. Claim 63 recites “The method of claim 28, wherein said at least one heat source is a light source, a hot water source, a steam source, an electric source, a gas source, or any combination thereof”. Claim 64 recites “The method of claim 28, wherein said at least one pressure source is a pressure cooker, an autoclave, a sealed container, said at least one sealed container, air pressure, water pressure, steam pressure, heat generated pressure, or any combination thereof”. Claim 65 recites “The method of claim 28, wherein said temperature is between about 185 F and about 300 F”. Claim 66 recites “The method of claim 28, wherein said temperature within said sealed container is between about 229 F and about 244 F”. Claim 67 recites “The method of claim 28, wherein said pressure is between about 0.5 atmospheres and about 10 atmospheres”. Claim 68 recites “The method of claim 28, wherein said pressure within said sealed container is between about 5.8 psi and about 11.6 psi”. Claim 69 recites “The method of claim 28, wherein said reaction is run at a time between about 1 hour and about 6 days”. Claim 70 recites “The method of claim 28, wherein said at least one extract of cannabis is concentrated”.
Ragot recites a plant product as follows: “The invention relates to an edible product
comprising plant materials as raw materials. In particular, the edible product may comprise a fibrous plant product and a plant extract” (paragraph [0006]). When describing the use of solvents, Ragot, teaches: “In one embodiment of the invention, one or more plant components (plant material or plant funish (sic)) such as, for example, stems, scraps, leaves, fines, dust and/or shorts, are initially mixed with a solvent (e.g., water and/or other compounds) at elevated temperatures” (paragraph [0088]; see instant claims 28, 59, 60). This quote describes contacting plant material with a solvent such as water. Ragot further teaches: “Once separated from the insoluble residue fraction of the plant solution, the soluble extracts fraction can optionally be concentrated using any known type of concentrator, such as a vacuum evaporator” (paragraph [0091]; see instant claim 70). This quote renders obvious the concentration of soluble extracts.
Ragot describes pressure and temperature parameters for the extraction in paragraph
[0103]:
“Extraction may also be performed by means other than using hot water, namely by extraction with supercritical gases, such as carbon dioxide, or by using, for example, ethanol, hexane, acetone, R134a (1,1,1,2-tetrafluoroethane), carbon dioxide and hydrofluorocarbons. In one embodiment, the extraction can be carried out by using at least one solvent at room temperature and under atmospheric pressure. Extraction may also be performed by using a mixture of different solvents. In another embodiment, extraction may be performed using at least one solvent, such as for example R134a or carbon dioxide, at different temperatures and at different pressures and different states (liquid or gaseous). For example, extraction may be performed using solvents in a liquid state (such as solvent that are volatile or non-volatile at room temperature), in a subcritical state (such as water at a temperature above 100.degree. C. and a pressure above 1 bar), or in a supercritical state (such as carbon dioxide at a temperature above 31.degree. C. and a pressure above 73 bar)”.
In the quoted paragraph Ragot teaches certain non-ethanolic and aqueous extractions including extractions using a mixture of solvents and extractions under different temperature and pressure regimes, including examples of extractions under greater-than-ambient temperature (100 °C) and/or pressure regimes (73 bar) (see instant claims 28+, 63). Extractions under greater-than-ambient temperature regimes are broadly understood to require applying heat to the reaction mixture by applying at least one heat source to the container holding the reaction mixture (see instant claims 28+). Extractions under pressure regimes are broadly understood as requiring a reaction mixture in an airtight, sealed container to provide isolation from the ambient atmosphere (see instant claims 28+, 61, 64, 66, and 68). Greater-than ambient pressure regimes are broadly understood to require applying at least one pressure source to the reaction mixture or a sealed container holding the reaction mixture (see instant claims 28+ and 64).
Furthermore, regarding extraction conditions, Ragot recites: “Certain plants may require specific extraction conditions (time, temperature, solid/liquid ratio) due to the ingredients contained therein, which may be temperature sensitive or must not be subjected to certain extraction conditions” (paragraph [0104]). This quote lists time as a condition in an extraction procedure (see instant claims 28+). Ragot further provides a list of “Examples of plants that are useful in accordance with the present invention” (paragraph [0114]), including the Cannabaceae family member Cannabis sativa (paragraph [0115]; see instant claims 28+, 55, 56).
Although Ragot does not explicitly recite using a pressure cooker for extraction, a pressure cooker is broadly known in the art as a heat and pressure source, and would inherently require a seal to prevent its internal contents from depressurizing to the pressure of the surrounding atmosphere (instant claims 62 and 64).
Even if Ragot is interpreted not to recite hot water as a heat source; hot water, a gas burner, or an electric heating element are all heat sources that are broadly known in the art, and outside the art as common knowledge (instant claim 63).
The instant claims are distinguished from Ragot in that Ragot does not explicitly recite an extraction temperature between about 185 F and about 300 F, or between about 229 F and about 244 F in a sealed container, for an extraction of hydrophobic psychoactive compounds from cannabis using an aqueous non-ethanolic solvent (instant claims 65 and 66, respectively). However, one of skill in the art could have achieved these extraction temperatures through routine optimization. One of skill in the art could adjust the temperature by adjusting the heat applied to the reaction mixture using an electric hot plate, or another electric device with an adjustable heat setting. The temperature of the heated materials could be measured using a thermometer. The concentrations of extracted hydrophobic psychoactive compounds from cannabis could be measured using HPLC. Therefore, one of skill in the art could have adjusted the extraction temperature to optimize the extraction yield, rendering the limitations of instant claims 65 and 66 obvious to one of skill in the art over routine optimization.
The instant claims are distinguished from Ragot in that Ragot does not explicitly recite an extraction pressure of between about 0.5 atmospheres and about 10 atmospheres, or between about 5.8 psi and about 11.6 psi in a sealed container, for an extraction of hydrophobic psychoactive compounds from cannabis using an aqueous non-ethanolic solvent (instant claims 67 and 68, respectively). However, one of skill in the art could have achieved these extraction pressures through routine optimization. One of skill in the art could increase the pressure above one atmosphere by adjusting the heat applied to the reaction mixture in a sealed container using an electric hot plate, or another electric device with an adjustable heat setting (Ideal Gas Law). One of skill in the art could decrease the pressure below one atmosphere using vacuum pump and the sealing the container to prevent ambient gases from entering. The pressure within the container could be measured using an air pressure gauge. The concentrations of extracted hydrophobic psychoactive compounds from cannabis could be measured using HPLC. Therefore, one of skill in the art could have adjusted the extraction pressure to optimize the extraction yield, rendering the limitations of instant claims 67 and 68 obvious to one of skill in the art over routine optimization.
The instant claims are distinguished from Ragot in that Ragot does not explicitly recite a reaction time of between about between about 1 hour and about 6 days for an extraction of hydrophobic psychoactive compounds from cannabis using an aqueous non-ethanolic solvent (instant claim 69). However, one of skill in the art could have achieved these reaction times through routine optimization, using a timer to measure reaction times, and ending the reaction at specific times, by removing heat and pressure and separating the extraction solvent from the botanical source material. The concentrations of extracted hydrophobic psychoactive compounds from cannabis could be measured using HPLC. Therefore, one of skill in the art could have adjusted the reaction time to optimize the extraction yield, rendering the limitations of instant claim 69 obvious to one of skill in the art over routine optimization.
The instant claims are distinguished from Ragot in that Ragot does not explicitly recite an extraction of hydrophobic psychoactive compounds; such as THC, CBD, or CBN; from cannabis using an aqueous non-ethanolic solvent (instant claims 28, and 50-53), that the psychoactive extract is intoxicating (instant claim 49), and that the cannabis used for this extraction comprises Cannabis sativa, Cannabis indica, or Cannabis ruderalis (instant claims 55-58). Xavier recites a general extraction and separation procedure for cannabinoids:
“A method of purifying one or more cannabinoids from a plant material including a plant, a plant resin or a plant extract, the method comprising the following steps:
(a) incubating the plant material with a solvent selected from the group consisting of pentane, hexane, heptane, petroleum ethers, cyclohexane, dichloromethane, trichloromethane, tetrahydrofurane, diethyl ether, toluene, benzene, ethanol, methanol, isopropanol, acetone, acetonitrile, ethyl acetate, butane, propane, 1,1,1,2-Tetrafluoroethane (R134a) or, liquid, subcritical or supercritical CO2 or mixes thereof to form a solvent mixture which extracts the one or more cannabinoids from the plant material, wherein the solvent mixture has an original volume, a concentrated volume or a dry extract obtained from evaporation to dryness of the original volume of the solvent mixture;
(b) for tetrahydrocannabinol-type (THC-type) extracts, adding to the solvent mixture a biphasic
solvent system selected from the group consisting of hexane:ethanol:water, pentane:acetonitrile
and hexane:acetonitrile, wherein the pentane:acetonitrile system and the hexane:acetonitrile
system optionally include ethyl acetate and/or water as a modifier; for cannabidiol-type (CBD-type) extracts, adding to the extract a biphasic solvent system of hexane:ethanol:water; and for cannabigerol-type (CBG-type) extracts, adding to the extract a biphasic solvent system of
hexane:ethanol:water;
(c) performing liquid:liquid chromatography using a biphasic solvent system of
step b), thereby purifying the one or more cannabinoids; and
(d) performing optional crystallization after the step of liquid:liquid
Chromatography” (Claim 1).
Xavier further specifies the applicable plant materials:
“The disclosed methods may be used to extract/purify cannabinoids or cannabinoid acids from any plant material known to contain such cannabinoids or cannabinoid acids. Most typically, but not necessarily, the "plant material" will be derived from one or more cannabis plants. Plants from which cannabinoids may be isolated include: Cannabis sp. including Cannabis sativa L. and all subspecies, the putative species Cannabis indica Lam., Cannabis ruderalis Janisch, and hybrids and varieties thereof, as discussed further Below” (specification paragraph [57]; instant claims 28 and 55-58).
In the above quote, Xavier recites a solvent mixture for extracting one or more cannabinoids from plant material, which in some selections is non-ethanolic, further reciting under (b) for THC-type extracts, adding to the solvent mixture a biphasic solvent system. Xavier further recites in claim 3 an aqueous and non-ethanolic solvent system for THC-type extracts “The method of claim 1, wherein for the THC-type extracts the biphasic solvent system is pentane:ethyl acetate:acetonitrile:water at a ratio from (10:0:10:0) to (7:3:7:3) by volume”(Xavier claim 3; instant claims 28, 50, and 51). Xavier specifies a non-ethanolic aqueous solvent systems for CBD-type extracts “Preferred solvent ratios for THC-type cannabinoids are pentane:ethyl acetate: acetonitrile:water at (19:1:19:1) by volume or (9:1:9:1) by volume. These two systems can also be used for CBD and CBG-type extracts. For CBD-type extracts the ratio of pentane:ethyl acetate:acetonitrile:water is preferably (8:2:8:2)” (specification paragraph [33]; instant claims 28, and 50-52). The use of certain non-ethanolic organic/aqueous solvent systems as recited by Xavier implies that despite the hydrophobicity of THC and CBD, these compounds can be dissolved in these solvent systems, such as those comprising pentane, ethyl acetate, acetonitrile, and water (instant claims 28, and 50-52). Therefore, one of skill in the art would have a reasonable expectation of success at using such a solvent system for extracting THC or CBD from cannabis (instant claims 28, and 50-52). The cannabinoids THC, CBD, and CBN have similar hydrophobicity, as shown by their structures as hydrocarbons with 21 carbon atoms, two oxygen atoms, and no other heteroatoms (instant claim 28); therefore, one of skill in the art would also have a reasonable expectation of success applying one of the above non-ethanolic aqueous solvent systems for extracting CBN from cannabis (instant claims 50 and 53). The water in such a solvent system used for extraction is one solvent comprising a reaction mixture that does not include ethanol, and one phase in the bulk aqueous solvent that would reasonably contact cannabis as it combined with the bulk aqueous solvent (instant claims 28, 59, and 60; instant specification, page 21, under subheading K. Bulk Solvent).
One of skill in the art would have been motivated to extract the psychoactive compound(s) THC, CBD, and/or CBN from cannabis for recreational use, as broadly known in the art. One of skill in the art would have also been motivated to extract these compounds because of possible therapeutic uses. Xavier recites a calming effect from THC; and, from CBD, an ameliorative effect in patients with schizophrenia (specification, paragraph [6]; instant claims 28 and 50-52). This calming effect of THC is considered a form of intoxication, without specification to the contrary (instant claim 49). Xavier recites an extract of Cannabis sativa used to purify CBN, implying that CBN is an extractable component of Cannabis sativa (specification, paragraph [13]; instant claims 28, 50, and 53). Vu recites CBN as having very potent sedative characteristics (specification paragraph [0005]; instant claims 28, 50, and 53).
The instant claims are distinguished from Ragot in that Ragot does not explicitly recite an extraction of psychoactive terpene from cannabis using an aqueous non-ethanolic solvent (instant claims 28 and 54). Vu recites terpenes as a cannabis component (specification paragraph [0014]) and terpenes as having therapeutically useful psychoactive effects: “In the body, terpenes act on receptors and neurotransmitters. They readily combine with, or dissolve in, lipids or fats. Terpenes may act as serotonin uptake inhibitors, they may enhance norepinephrine activity, they may increase dopamine activity, and they may augment synaptic γ-aminobutyric acid (GABA) levels by inhibiting re-uptake. These actions are similar to many of the commonly prescribed anti-depressant drugs used today” (paragraph [0164]; instant claims 28 and 54). Therefore, one of skill in the art would have been motivated to extract terpenes from Cannabis. Tucker recites steam distillation as a method of extracting terpenes, implying that one of skill in the art would have had a reasonable expectation of success at extracting at least certain terpene compounds using boiling water as the extraction solvent (Tucker, paragraphs (3) and (16); instant claims 28 and 54). In this case the at least one bulk aqueous solvent (claim 28, step f)) would comprise the aqueous solvent water (instant claims 59 and 60), reasonably without any other phases.
From the teachings of Xavier, Vu, and Tucker of record above, along with the instant claims cited with these teachings, it would have been obvious to one of skill in the art to combine the broad teachings of Ragot, of record above, with the cited narrower teachings of Xavier, Vu, and Tucker regarding cannabinoids and their extraction.
Ragot, Xavier, Vu, and Tucker are relied upon for the reasons discussed above. If not expressly taught thereby, based upon the overall beneficial teachings provided by the references with respect to providing the method of extracting a hydrophobic psychoactive compound from cannabis, the adjustments of particular conventional working conditions (e.g., the selection from among known components and determining one or more suitable ranges (amounts, proportions, ratios thereof) in which to provide the method of extraction), is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
From the teachings of Ragot in view of Xavier, Vu, and Tucker, the invention as a whole, drawn to a method of extracting psychoactive compounds from cannabis as described in Claims 28 and 49-70, would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, and one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Please note, since the Office does not have the facilities for examining and comparing Applicants’ methods with the methods (including compositions thereof) of the prior art, the burden is on applicant to show a novel or unobvious difference between the claimed methods and the methods of the prior art (and compositions thereof). See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980), and “as a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith.” In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972).
Claims 71-74 are rejected under 35 U.S.C. 103 as being unpatentable over Ragot (US 20150037389 A1) and further in view of Cibaka et al. (J. Agric. Food Chem. 2015, 63 (11), 3022−3030).
Claim 71 recites
“A method of making a flavored extract of the family Cannabaceae, comprising:
a) providing at least one sample comprising the family Cannabaceae;
b) providing at least one aqueous solvent; wherein said at least one aqueous solvent does not include ethanol;
c) providing at least one sealed container;
d) providing at least one heat source;
e) providing at least one pressure source;
f) contacting said at least one sample comprising the family Cannabaceae with said at least one aqueous solvent in said at least one sealed container to provide at least one reaction mixture comprising at least one bulk aqueous solvent; wherein said at least one reaction mixture does not include ethanol; further wherein said at least one bulk aqueous solvent does not include ethanol;
g) exposing said at least one container with said at least one reaction mixture to at least one of:
1) heat from said at least one heat source;
2) pressure from said at least one pressure source;
h) reacting said at least one reaction mixture under a regime of conditions comprising:
1) temperature,
2) pressure, and
3) time;
to provide at least one flavored extract of the family Cannabaceae that does not include ethanol; wherein said at least one flavored extract of Cannabaceae comprises at least one hydrophobic flavored compound from Cannabaceae”.
Claim 72 recites “The method of claim 46, wherein said family Cannabaceae comprises the genus Humulus”. Claim 73 recites “The method of claim 46, wherein said family Cannabaceae comprises the species Humulus lupulus, also known as hops”. Claim 74 recites
“A method of making a flavored extract of Humulus lupulus, comprising:
a) providing at least one sample comprising Humulus lupulus;
b) providing at least one aqueous solvent; wherein said at least one aqueous solvent does not include ethanol;
c) providing at least one sealed container;
d) providing at least one heat source;
e) providing at least one pressure source;
f) contacting said at least one sample comprising Humulus lupulus with said at least one aqueous solvent in said at least one sealed container to provide at least one reaction mixture comprising at least one bulk aqueous solvent; wherein said at least one reaction mixture does not include ethanol; further wherein said at least one bulk aqueous solvent does not include ethanol;
g) exposing said at least one container with said at least one reaction mixture to at least one of:
1) heat from said at least one heat source;
2) pressure from said at least one pressure source;
h) reacting said at least one reaction mixture under a regime of conditions comprising:
1) temperature,
2) pressure, and
3) time;
to provide at least one flavored extract of Humulus lupulus that does not include ethanol; wherein said at least one flavored extract of Humulus lupulus comprises at least one hydrophobic flavored compound from Humulus lupulus”.
Ragot recites a plant product as follows: “The invention relates to an edible product
comprising plant materials as raw materials. In particular, the edible product may comprise a fibrous plant product and a plant extract” (paragraph [0006]). When describing the use of solvents, Ragot, teaches: “In one embodiment of the invention, one or more plant components (plant material or plant funish (sic)) such as, for example, stems, scraps, leaves, fines, dust and/or shorts, are initially mixed with a solvent (e.g., water and/or other compounds) at elevated temperatures” (paragraph [0088]; see instant claims 71+ and 74). This quote describes contacting plant material with a solvent such as water.
Ragot describes pressure and temperature parameters for the extraction in paragraph
[0103]:
“Extraction may also be performed by means other than using hot water, namely by extraction with supercritical gases, such as carbon dioxide, or by using, for example, ethanol, hexane, acetone, R134a (1,1,1,2-tetrafluoroethane), carbon dioxide and hydrofluorocarbons. In one embodiment, the extraction can be carried out by using at least one solvent at room temperature and under atmospheric pressure. Extraction may also be performed by using a mixture of different solvents. In another embodiment, extraction may be performed using at least one solvent, such as for example R134a or carbon dioxide, at different temperatures and at different pressures and different states (liquid or gaseous). For example, extraction may be performed using solvents in a liquid state (such as solvent that are volatile or non-volatile at room temperature), in a subcritical state (such as water at a temperature above 100.degree. C. and a pressure above 1 bar), or in a supercritical state (such as carbon dioxide at a temperature above 31.degree. C. and a pressure above 73 bar)”.
In the quoted paragraph Ragot teaches certain non-ethanolic and aqueous extractions including extractions using a mixture of solvents and extractions under different temperature and pressure regimes, including examples of extractions under greater-than-ambient temperature (100 °C) and/or pressure regimes (73 bar) (see instant claims 71+ and 74). Extractions under greater-than-ambient temperature regimes are broadly understood to require applying heat to the reaction mixture by applying at least one heat source to the container holding the reaction mixture (see instant claims 71+ and 74). Extractions under pressure regimes are broadly understood as requiring a reaction mixture in an airtight, sealed container to provide isolation from the ambient atmosphere (see instant claims 71+ and 74). Greater-than ambient pressure regimes are broadly understood to require applying at least one pressure source to the reaction mixture or a sealed container holding the reaction mixture (see instant claims 71+ and 74).
Furthermore, regarding extraction conditions, Ragot recites: “Certain plants may require specific extraction conditions (time, temperature, solid/liquid ratio) due to the ingredients contained therein, which may be temperature sensitive or must not be subjected to certain extraction conditions” (paragraph [0104]). This quote lists time as a condition in an extraction procedure (see instant claims 71+ and 74). Ragot further provides a list of “plants that are useful in accordance with the present invention” (paragraph [0114]), including the Cannabaceae family member Humulus lupulus (paragraph [0115]; see instant claims 71-74).
The instant claims are distinguished from Ragot in that Ragot does not recite extracting hops (Humulus lupus) with a non-ethanolic extract to provide a flavored extract comprising a hydrophobic flavored compound. Cibaka recites an extraction of terpenoids from hops (equivalent to Humulus lupulus; Cibaka, Introduction, paragraph 1); the extraction procedure is recited as follows: “Steam distillation–solvent extraction was carried out in a microextractor (Alltech 8910) according to ref 36. Hop pellets (0.5 g) were milled and mixed with 50 mL of deoxygenated ultrapure water and 1.5 mL of a carvone solution at 20 mg/L (internal standard) in flask A. Dichloromethane and ultrapure, deoxygenated water (1.5 mL each) were introduced into the liquid/liquid extraction area. Dichloromethane (1.5 mL) was introduced into the organic-phase vessel (B)” (Experimental Procedures, Extraction of Terpenoids and Other Non-Sulfur Hop Oils by the Likens Nickerson Method). The step of extraction of terpenoids from the hop material was completed using steam distillation with an aqueous solvent, water combined with a carvone solution, implying that the terpenoids extracted are soluble in a boiling aqueous solution of carvone (instant claims 71 and 74). One of the terpenoid compounds extracted, β-citronellol, is reasonably hydrophobic based on its chemical structure, a hydrocarbon with the formula C10H20O (Results and Discussion, paragraph 4; instant claims 71 and 74). Cibaka reasons an influence of β-citronellol compound in the flavoring of derived beers: “The concentration of β-citronellol was above 7 mg/kg in the five dual-purpose hops investigated here, while values under 1.2 mg/kg have been reported for Nelson Sauvin and Tomahawk (Figure 1d). Taking into account a dilution factor of ∼500 between hop and beer (hopping rate generally ∼200 g/hL) and a flavor threshold of 8 μg/L, (14) we can assume an impact of this citrus-like terpenoid in the flavor of derived beers” (Results and Discussion, paragraph 4). Therefore, one of skill in the art would have had a reasonable expectation of success at extracting β-citronellol from hops, and using it as a flavoring compound (instant claims 71-74). Cibaka recites the relevance of β-citronellol for beer flavoring “In conclusion, although much diversity was found among the investigated dual-purpose hops, all proved to contain an exceptional citrus-like potential. In Sorachi Ace, β-citronellol is probably the main compound responsible for such notes” (Results and Discussion, final paragraph, page 3092, left column, final paragraph). Therefore, one of skill in the art would have been motivated to extract β-citronellol from hops to impart a citrus-like flavor to a beverage such as beer (instant claims 71-74). Therefore, it would have been obvious to one of skill in the art to combine the broad teachings of Ragot, of record above, with the cited narrower teachings of Cibaka to extract β-citronellol from hops to provide a flavored extract comprising a hydrophobic flavored compound (instant claims 71-74).
Conclusion
No claims are allowed.
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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/R.F.S./Examiner, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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