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 .
DETAILED ACTION
Claim Status
The amended claim set of 13 Apr 2026 has been entered and reviewed
Claims 21-23 are new
Claims 1-23 are pending and subject to election/restriction requirement.
Election/Restrictions
Applicant’s election without traverse of Group 1, claims 1-5 and 20-23, in the reply filed on is acknowledged.
The requirement is still deemed proper and is therefore made FINAL.
Claims 6-19 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Claims 1-5 and 20-23 are under consideration.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 18 Dec 2023 is in compliance with the provisions of 37 CFR 1.97, except where noted. Accordingly, the information disclosure statement is being considered by the examiner.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “400” has been used to designate both a roller in figure 6 and particles in figure 9. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 4 is objected to because of the following informalities:
Photonic structure does not need to be capitalized and there needs to be a comma between “Structure” and “a computer.”
Appropriate correction is required.
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 20-22 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 4 contains the trademark/trade name “kinegram.”
Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a diffractive optically variable image device and, accordingly, the identification/description is indefinite.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 5 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 5 recites “an optical image and or optical information” whereas claim 1 recites “an optical image and or holographic information.” “Optical image” is repeated in claims 1 and 5, and thus does not add a further limitation. Additionally, “optical information” as used in claim 5 is broader than “holographic information” as used in claim 1 and thus claim 5 fails to further limit the subject matter of claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
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 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Keranen (US 2021/0100741, published 08 Apr 2021, filed 05 Oct 2020) in view of Queally (Los Angeles Times, Counterfeit cannabis products stoke black market for California, 26 Aug 2019) and Begleiter (US 2008/0019925, published 24 Jan 2008).
Keranen teaches the addition of flavors into bioactive extracts of plants such as Cannabis sativa ([0002]). Keranen teaches applying heat to a bioactive plant extract until the extract is melted or softened to a workable consistency to form a melt, combining a flavoring and carrier and cooling the mixture wherein at room temperature the flavored product is crystallized or resinous ([0008], [0043]), rendering obvious the crystalized resin material comprising a cannabis derived resin of the claims. Keranen teaches that the extract may be obtained from glandular trichomes ([0002], [0024]) and comprise THCa and CBDa ([0012]), rendering obvious claims 2 and 3. Keranen teaches forming dab and crumble cannabis products (e.g. [0057], [0067]).
Keranen does not teach microscopic surface reliefs generating an optical image and or holographic information. This deficiency is made up for in the teachings of Queally and Begleiter.
Queally teaches that counterfeit cannabis products cut into the profits and reputations of popular legal brands while boosting sales of the black market (page 2 middle). Counterfeit items provide a boost to unlicensed dispensaries which can sell marijuana at much lower prices than their legal counterparts by skirting state and local taxes (page 3 top). Queally teaches that the Bureau of Cannabis Control has tried to warn people about counterfeit products (page 3 bottom), but the “fakes keep getting better and better” (page 4 bottom) and that field investigators don’t know the difference between a legitimate vaping pen and a knockoff pen (page 5 middle). Queally teaches that the counterfeit items are not only a threat to legitimate businesses, but also pose a risk to customer safety because “the stuff that’s in there is nowhere near the quality” (page 5 bottom – page 6 top) and that counterfeit items are not tested for pesticides and other contaminants which poses health risks (page 2 middle).
Begleiter teaches solid dosage forms bearing diffraction reliefs capable of conveying information ([0001]) and that creating holographic images using fine diffraction patterns illuminated with laser light is well known ([0002]). Begleiter teaches that in the pharmaceutical field that it is important to identify and differentiate one product from another reliably as the consumer needs to be sure of what medicine he/she is taking and that the manufacturer is interested in establishing brand identity and extending brand loyalty and that there is an interest to be able to deter counterfeits and covertly differentiate dosage forms ([0007], [0018]). Begleiter teaches pharmaceutical dosage forms and other edible products bearing a microrelief and in particular a high resolution diffraction relief ([0022]). Begleiter teaches methods such as direct laser imprinting a diffraction relief pattern in an outer coating layer of a dosage form ([0095]). Begleiter teaches a method of forming a holographic microrelief pattern directly into an outer layer using a laser where light energy creates corresponding grooves (i.e. microrelief) into the layer ([0178]). Begleiter teaches that the holographic images or effects can provide brand identification, control counterfeiting, and provide quality control ([0183]).
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have added microreliefs to an outerlayer or surface of the cannabis product taught by Keranen in order to form a holographic image or effect. It is known from Queally that cannabis products are subject to counterfeiting and that such products harm legitimate businesses and are unsafe for the consumer. It is further known from Queally that identifying such counterfeit products is difficult. It is known from Begleiter that microreliefs can be added to pharmaceutical or other edible products to form holographic images which serves to provide brand identification, control counterfeiting, and provide quality control. Thus, one of ordinary skill in the art would recognize that there is a need in the market for improved identification of legitimate cannabis products, for both the business and the consumer, and that holographic images formed from microreliefs on the product surface offer a solution to the address the problems with counterfeiting and product identification. Thus, one would be motivated to incorporate surface microreliefs as a means of product identification and would have a reasonable expectation of success as reliefs are known to be added to solid pharmaceutical and other edible products.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
Claims 20-23 are rejected under 35 U.S.C. 103 as being unpatentable over Keranen (US 2021/0100741, published 08 Apr 2021, filed 05 Oct 2020) in view of Queally (Los Angeles Times, Counterfeit cannabis products stoke black market for California, 26 Aug 2019) and Begleiter (US 2008/0019925, published 24 Jan 2008), as applied to claims 1-5 above, and further in view of Stebbins et al. (US 2016/0143972, published 26 May 2016).
The teachings of Keranen, Queally and Begleiter are described supra.
Keranen further teaches that the addition of the flavored product directly or indirectly to foods, beverages, or smokable hemp products and that flavored crumble may be added to desserts, doughnuts, jellies or sweetened drinks ([0045]), thereby rendering obvious an edible product and applying the cannabis derived resin with surface reliefs to the edible product as in claim 20 and that the cannabis derived resin are edible or ingestible as per claim 21. Keranen teaches the product as a crumble which has the form of a powder (e.g. [0067]).
Keranen, Queally, and Begleiter do not teach micron sized particles (claim 20) or the specific particle sizes of claims 22 and 23. This deficiency is made up for in the teachings of Stebbins.
Stebbins teaches that the solid form of a cannabinoid may be milled to obtain the powder form of a cannabinoid ([0007], [0026]). Stebbins teaches that powdered cannabinoids may be used in the creation of powdered drink additives and cooking/baking additives ([0013]). Stebbins teaches that the particle size of the powder form of cannabinoid may be in a range of 500 microns to 8000 microns or that the average particle size may be below 1 micron or the smallest size obtainable by available technology such as 141 nm (i.e. 0.141 microns) ([0026]).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to have formed the edible product rendered obvious over Keranen, Queally and Beleiter as a powdered cannabis product with micron particle size in a range of 500 microns to 8000 microns or below 1 micron or the smallest size obtainable by available technology such as 141 nm. These particle sizes overlap with the claimed dimensions of claims 22 and 23, rendering obvious these amounts. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). It would have been obvious to one of ordinary skill in the art to form the product with such particle dimensions, with a reasonable expectation of success, as Keranen teaches powdered forms for the cannabis product and incorporating into foods and beverages and cannabinoid powders with the above described dimensions are known from Stebbins for drink additives and cooking/baking additives. Thus, micron sized particle dimensions are obvious for cannabinoid related food/drink powders and the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
Conclusion
No claim is allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDWIN C MITCHELL whose telephone number is (571)272-7007. The examiner can normally be reached Mon-Fri 8:00-5:00.
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/E.C.M./Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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