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 .
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 9-12 and 16-19 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 9 recites the phrase "between approximately 1 % and 20%monoterpenes" which appears to be a typographical error as well as fails to recite basis for the percentage. For the purposes of this Office Action, the phrase is best interpreted to read "between approximately 1 wt.% and 20 wt.% monoterpenes."
Claim 10 recites the phrase "between 1 % and 20%sesquiterpenes" which appears to be a typographical error as well as fails to recite basis for the percentage. For the purposes of this Office Action, the phrase is best interpreted to read "between 1 wt.% and 20 wt.% sesquiterpenes."
With regards to claims 11, 12, and 16, the claims recite a percentage but fail to recite basis for the percentage. For the purposes of this Office Action, the percentage is interpreted as "wt.%."
Claim 17 recite the phrase "between 1 % and 30%sesquiterpenes" which appears to be a typographical error as well as fails to recite basis for the percentage. For the purposes of this Office Action, the phrase is best interpreted to read "between 1 wt.% and 30 wt.% sesquiterpenes."
Claim 18 recites the phrase "between 1 % and 30%composition of monoterpenes" which appears to be a typographical error as well as fails to recite basis for the percentage. For the purposes of this Office Action, the phrase is best interpreted to read "between 1 wt.% and 30 wt.% monoterpenes."
Claim 19 recites the phrase "between 1 % and 30%composition of sesquiterpenes " which appears to be a typographical error as well as fails to recite basis for the percentage. For the purposes of this Office Action, the phrase is best interpreted to read "between 1 wt.% and 30 wt.% sesquiterpenes."
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.
Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Backes (US 20210069271).
With regards to claim 1, Backes discloses a method of modifying a plant material (abstract; novel plant products customized to provide a desired, consistent and stable Entourage of Interest (EOI) and processes for making and using the same are provided), the method comprising:
a. providing the plant material (¶ 112, a plant may be harvested), wherein the plant material comprises at least 0. 1 % v/w of an oil content correlated to a fresh weight associated with a plant flower (¶ 008, cannabis-based dried plant (flower) products that decouple cannabinoids from other biologically (physiologically) and psychologically active content, such as terpenes: ¶ 075, the fresh plant material at the time of harvest comprises a total terpene content of from about 0.1 % to ... about 1.6% by weight; ¶ 54, with respect to terpene content... essential oil superclasses have been identified, i.e., about 0.1 to 1.6 v/w);
b. milling the plant material at a first temperature to generate a first plurality of plant material fragments, wherein the first temperature is not in excess of +32F (¶ 123, the fraction to be used as plant material substrate is dried then stored frozen until chopped, then chopped just below freezing; ¶ 126, at optimal processing of plant material includes a low friction process and temperature control. .. chopping or granulating at low temperature, e.g., at a temperature of from about 0° F. to 50° F), wherein the first plurality of plant material fragments comprises an average diameter of 300-1500 μm (¶ 128, the dried plant material is chopped to yield pieces of dried plant material having a size of about 1-8 mm = 1000 to 8000 μm in diameter);
and c. exposing the first plurality of plant material fragments to a second temperature not in excess of +32 F and a humidity not in excess of 40% RH for at least 1 hour (¶ 115, drying plant material; ¶ 120, the harvested plant material to be used as plant substrate is dried at a temperature of from about 25° F. to 65° F; ¶ 119, exemplary drying methods include, but are not limited to, conventional drying, vacuum-assisted drying, microwave vacuum-assisted drying, freeze-drying, micro-wave freeze drying, vacuum-assisted microwave freeze drying, convection heating-assisted vacuum drying, or any combination, i.e., vacuum= a humidity not in excess of 40% RH; ¶ 121, the harvested plant material is dried at a temperature or temperature range until the moisture content is from about 7% to about 14%, for example, for a time period of from about 96 to 504 hours).
Regarding Claim 2, Backes discloses the method of claim 1, wherein step c produces a second plurality of plant material fragments (¶ 115, drying plant material; ¶ 120, the harvested plant material to be used as plant substrate is dried at a temperature of from about 25° F. to 65° F; ¶ 121 , the harvested plant material is dried at a temperature or temperature range until the moisture content is from about 7% to about 14%, i.e., produces a second plurality of plant material fragments).
Regarding Claim 3, Backes discloses the method of claim 2, wherein the second plurality of plant material fragments (¶ 115, drying plant material; ¶ 120, the harvested plant material to be used as plant substrate is dried at a temperature of from about 25° F. to 65° F; ¶ 121, the harvested plant material is dried at a temperature or temperature range until the moisture content is from about 7% to about 14%) comprises a flowable composition (¶ 128, the dried plant material is chopped to yield pieces of dried plant material having a size of about 1-8 mm = 1000 to 8000 μm in diameter, i.e., a flowable composition as the Applicant states, See Current Specification PCT/US22/78167, in ¶ 005 "the flowable composition comprises particles having an average diameter size between 300 and 1500 μm" and in ¶ 51 "flowable material, such as a powder.").
Regarding Claim 4, Backes discloses the method of claim 1, wherein the plant material comprises at least 0.13% v/w oil content correlated to fresh weight associated with the plant flower (¶ 008, cannabis-based dried plant (flower) products that decouple cannabinoids from other biologically (physiologically) and psychologically active content, such as terpenes: ¶ 075, the fresh plant material at the time of harvest comprises a total terpene content of from about 0.1 % to ... about 1.6% by weight; ¶ 054, with respect to terpene content... essential oil superclasses have been identified, i.e., essential terpene oil approximate density 1 g/ml, thus about 0.1 to 1.6 v/w).
Regarding Claim 5, Backes discloses the method of claim 1, wherein the plant material comprises at least 0.16% v/w oil content correlated to fresh weight associated with the plant flower (¶ 008, cannabis-based dried plant (flower) products that decouple cannabinoids from other biologically (physiologically) and psychologically active content, such as terpenes; ¶ 075, the fresh plant material at the time of harvest comprises a total terpene content of from about 0.1 % to ... about 1.6% by weight; ¶ 054, with respect to terpene content... essential oil superclasses have been identified, i.e., essential terpene oil approximate density 1 g/ml, thus about 0.1 to 1.6 v/w).
Regarding Claim 6, Backes discloses the method of claim 1, wherein the plant material comprises at least 0.2 0% v/w oil content correlated to fresh weight associated with the plant flower (¶ 008, cannabis-based dried plant (flower) products that decouple cannabinoids from other biologically {physiologically) and psychologically active content, such as terpenes; ¶ 075, the fresh plant material at the time of harvest comprises a total terpene content of from about 0.1 % to ... about 1.6% by weight; ¶ 054, with respect to terpene content... essential oil superclasses have been identified, i.e., essential terpene oil approximate density 1 g/ml, thus about 0.1 to 1.6 v/w).
Regarding Claim 7, Backes discloses the method of claim 1, wherein the plant material comprises at least 0.29 % v/w oil content correlated to fresh weight associated with the plant flower (¶ 008, cannabis-based dried plant (flower) products that decouple cannabinoids from other biologically (physiologically) and psychologically active content, such as terpenes; ¶ 075, the fresh plant material at the time of harvest comprises a total terpene content of from about 0.1 % to ... about 1.6% by weight; ¶ 054, with respect to terpene content... essential oil superclasses have been identified, i.e., essential terpene oil approximate density 1 g/ml, thus about 0.1 to 1.6 v/w).
Regarding Claim 8, Backes discloses the method of claim 1, wherein the oil content comprises a monoterpene profile or a sesquiterpene profile (¶ 056; page 4, Table 2, examples of the terpene profile of 3 marijuana cultivars (OG Kush, Bubba Kush and Sour Diesel) in the most common terpene subclass, LCM (limonene, caryophyllene, myrcene), are shown in Table 2, which also illustrates the terpene profile of a variety of cannabis cultivars with different terpenoid profiles).
Regarding Claim 9 (as best interpreted), Backes discloses the method of claim 8, wherein the monoterpene profile comprises between approximately 1 wt.% and 20 wt.% monoterpenes (¶ 056, page 4, table 2, the terpene profile ... Results of Terpene Analysis of Exemplary Camabis Cultivars ... Name ... Oakland Kyrptonite a-pinene 0.07%, 13-pinene 0.11 %, 13-myrene 0.10%, limonene 0.66%, 13-ocimene 0.04%, terpinolene 0.01%, linalool 0.04%, fenchol 0.05%, camphene 0.01%, i.e., 1.06 wt.%).
Regarding Claim 10 (as best interpreted), Backes discloses the method of claim 8, wherein the sesquiterpene profile comprises between 1 wt.% and 20 wt.% sesquiterpenes (¶ 056, page 4, table 2, the terpene profile ... Results of Terpene Analysis of Exemplary Camabis Cultivars ... Name ... 13-caryophyllene 0.85%, a-humulene 0.20%, caryophyllene 0.01 %, i.e., 1.15 wt.%).
Regarding Claim 11 (as best interpreted), Backes discloses the method of claim 1, wherein the oil content comprises between 1 wt.% and 20 wt.% composition of monoterpenes (¶ 054, terpene content... essential oil; ¶ 056, page 4, table 2, the terpene profile ... Results of Terpene Analysis of Exemplary Ca ma bis Cultivars ... Name ... Oakland Kyrptonite a-pinene 0.07%, 13-pinene 0.11 %, 13-myrene 0.10%, limonene 0.66%, 13-ocimene 0.04%, terpinolene 0.01 %, linalool 0.04%, fenchol 0.05%, camphene 0.01 %, i.e., 1.06 wt.%).
Regarding Claim 12 (as best interpreted), Backes discloses the method of claim 1, wherein the oil content comprises between 1 wt.% and 30 wt.% composition of sesquiterpenes (¶ 054, terpene content... essential oil; ¶ 056, page 4, table 2, the terpene profile ... Results of Terpene Analysis of Exemplary Camabis Cultivars ... Name ... 13-caryophyllene 0.85%, a-humulene 0.20%, caryophyllene 0.01%, i.e., 1.15wt. %).
Regarding Claim 13, Backes discloses the method of claim 1, wherein the oil is a volatile oil or essential oil (¶ 054, terpene content... essential oil).
Regarding Claim 14, Backes discloses the method of claim 1, wherein the plant material comprises between 1 % and 30% v/w terpenes correlated to fresh weight associated with ihe plant flower (¶ 008, cannabis-based dried plant (flower) products that decouple cannabinoids from other biologically {physiologically) and psychologically active content, such as terpenes; ¶ 075, the fresh plant material at the time of harvest comprises a total terpene content of from about 0.1 % to ... about 1.6% by weight; ¶ 054, with respect to terpene content. .. essential oil superclasses have been identified, i.e., about 0.1 to 1.6 v/w).
Regarding Claim 15, Backes discloses the method of claim 14, wherein the terpenes comprise a monoterpene profile or sesquiterpene profile (¶ 056; page 4, Table 2, examples of the terpene profile of 3 marijuana cultivars (OG Kush, Bubba Kush and Sour Diesel) in the most common terpene subclass, LCM (limonene, caryophyllene, myrcene), are shown in Table 2, which also illustrates the terpene profile of a variety of cannabis cultivars with different terpenoid profiles).
Regarding Claim 16 (as best interpreted), Backes discloses the method of claim 15, wherein the terpenes comprise between 1 wt.% and 30 wt.% monoterpenes (¶ 056, page 4, table 2, the terpene profile ... Results of Terpene Analysis of Exemplary Camabis Cultivars ... Name ... Oakland Kyrptonite a-pinene 0.07%, 13-pinene 0.11 %, 13-myrene 0.10%, limonene 0.66%, 13-ocimene 0.04%, terpinolene 0.01 %, linalool 0.04%, fenchol 0.05%, camphene 0.01 %, i.e., 1.06 wt.%).
Regarding Claim 17 (as best interpreted), Backes discloses the method of claim 15, wherein the terpenes comprise between 1 wt.% and 30 wt.% sesquiterpenes (¶ 056. page 4, table 2, the terpene profile ... Results ofTerpene Analysis of Exemplary Camabis Cultivars ... Name ... 13-caryophyllene 0.85%, a-humulene 0.20%, caryophyllene 0.01 %, i.e., 1.15 wt. %).
Regarding Claim 20, Backes discloses the method of claim 1, wherein the plant material comprises a cannabinoid profile (¶ [0008, cannabis-based dried plant (flower) products that decouple cannabinoids from other biologically (physiologically) and psychologically active content, such as terpenes; ¶ 046, Cannabis has been described as having particular chemotypes based on THCa, CBDA, CBGA, CBCA, their propyl cannabinoid and neutral cannabinoid variants, and terpene/terpenoid content; ¶ [0061 the fresh plant material at the time of harvest comprises a total cannabinoid content... wherein the cannabinoids may include one or more of, THCa, THCVa, delta9-THC, delta8-THC, THCV, CBDa, CBD, CBDVa, CBDV, CBN, CBGVa, CBGa, CBGV, CBG, CBCVa, CBCV, CBCa, and CBC).
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 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Backes (US 20210069271).
Backes is discussed above for being anticipatory. For completeness of examination, even if any part of the process requires election, the selection of each step would at the very least be obvious where each step and component is disclosed in the prior art reference.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BENJAMIN J PACKARD whose telephone number is (571)270-3440. The examiner can normally be reached Mon 2-6pm and Tues-Fri (9am-6pm + mid-day flex).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana S. Kaup can be reached at (571) 272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BENJAMIN J PACKARD/ Primary Examiner, Art Unit 1612