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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 12/29/2025 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims: (1) the objection to the abstract has been withdrawn; and (2) the 35 U.S.C. §112(b) rejection(s) have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 2
Withdrawn claims: None
Previously cancelled claims: None
Newly cancelled claims: 1
Amended claims: None
New claims: 2
Claims currently under consideration: 2
Currently rejected claims: 2
Allowed claims: None
Claim Objections
Claim 2 is objected to because “sealing the fermentation vessel and fermenting the mixture for a predetermined period of time; and distilling the fermented mixture after the predetermined period of time” should be read as “sealing the fermentation vessel and fermenting the mixture for a predetermined period of time; distilling the fermented mixture after the predetermined period of time”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
Claim 2 is rejected under 35 U.S.C. 112(a) 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.
Claim 2 recites an alcohol content of 37.5-55 vol.% in the final distillate. However, while the previous claim set and the specification filed 10/11/2023 recite alcohol contents of 37.5% and 55% by volume, neither the previous claim set nor specification recite an alcohol content within the range of greater than 37.5 vol.% and less than 55 vol.% (e.g., 40 vol.%). Therefore, the range of greater than 37.5 vol.% and less than 55 vol.% constitutes new matter.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Difford (“How is tequila made”, March 2023, Difford’s Guide For Discerning Drinkers, https://web.archive.org/web/20230325201927/https://www.diffordsguide.com/g/1084/tequila/how-is-tequila-made) in view of Llamas (US 2015/0182455).
Regarding claim 2, Difford teaches a method of producing a liquor (corresponding to tequila) comprising the steps of: extracting a plurality of agave hearts from a quantity of agave plant material (corresponding to the removal of the leaves to expose the piña and producing a pile of piña) (page 6, 4th paragraph under 2nd photo; page 7, 1st photo); cooking the extracted plurality of agave hearts (all of page 8); and crushing and mashing the cooked plurality of agave hearts (page 9, sentence under 3rd photo). Difford teaches that the method further comprises: transferring the crushed and mashed plurality of agave hearts to a fermentation vessel (corresponding to particles allowed to pass through to fermentation); producing a concentrate (corresponding to aguamiel) from the crushed and mashed agave hearts; adding water to the fermentation vessel forming a mixture within the fermentation vessel (corresponding to diluting the aguamiel with water) (page 10, paragraph under 2nd photo, paragraph under “5. Fermentation”); and sealing the fermentation vessel and fermenting the mixture for a predetermined period of time (corresponding to fermentation for 24-96 hours in a closed vat) (page 11, sentence beginning “Fermentation can be in open”) under 2nd photo).
Difford teaches that the method then comprises: distilling the fermented mixture after the predetermined fermentation time forming a first distillate and distilling the distillate forming a final distillate (corresponding to fermenting the mosto at least twice) (page 12, paragraph under 1st photo). Difford teaches that the final distillate may have an alcohol content of around 55-75 vol.% after distillation (page 12, paragraph under 2nd photo); and teaches that the distillate may be bottled at an alcohol content of 35-55 vol.% (page 14, paragraph under “9. Filter & dilute”), thereby disclosing that a final distillate may have an alcohol content of 35-75 vol.%, which encompasses the claimed alcohol content. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Difford also teaches that the liquor may comprise additives (page 14, 1st paragraph). Difford does not teach that its method further comprises: extracting a quantity of cannabis concentrate from a quantity of cannabis plant material; adding the quantity of cannabis concentrate to the fermentation vessel; and forming a final distillate comprising at least a portion of the quantity of extracted cannabis concentrate.
However, Llamas teaches an alcoholic beverage comprising a composition comprising cannabinoids and/or derivatives thereof, wherein the composition lessens the adverse effects of alcohol on the consumer [0025]. Llamas teaches that the alcoholic beverage may be tequila (page 6, claim 15); and that the beverage may be formed by mashing, fermenting, washing, distillation, filtering, and packaging [0046]. Llamas teaches that the method of making such an alcoholic beverage comprises: extracting a quantity of cannabis concentrate from a quantity of cannabis plant material (corresponding to hemp oil, cannabis oil, and extracts of natural sources including plants from the cannabis genus) [0034], [0037]; and adding a quantity of the extracted cannabis concentrate during a fermentation process during the production of the alcoholic beverage [0043]. The addition of the concentrate during the fermentation process renders the claimed step of adding the concentrate to the fermentation vessel obvious. Llamas teaches that the final alcoholic beverage comprises about 0.001 wt.% to about 1 wt.% of the cannabis concentrate [0051], thereby disclosing that the final alcoholic beverage contains at least a portion of the quantity of extracted cannabis concentrate.
It would have been obvious for a person of ordinary skill in the art to have modified the method of Difford to include adding a cannabis concentrate to the tequila as taught by Llamas. Since Difford teaches that its tequila may comprise additives (page 14, 1st paragraph) and Llamas discloses a cannabis concentrate as an additive for a tequila beverage which lessens adverse effects of the alcohol in the beverage ([0015]; page 6, claim 15), a skilled practitioner would readily recognize that the cannabis concentrate of Llamas may be a beneficial additive in the tequila of Difford as the cannabis concentrate lessens adverse effects of the alcohol in the tequila. Therefore, the combination of Difford and Llamas renders the claimed method of producing a cannabis infused liquor obvious.
Response to Arguments
Objection to the abstract: Applicant amended the abstract to fully address the objection.
Claim Rejection – 35 U.S.C. §112(b) of claim 1: Applicant canceled the claim; therefore, the rejection is moot.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/KELLY P KERSHAW/Examiner, Art Unit 1791