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 status
Claims 1-16 filed 09/10/2024 are pending in the application and are hereby examined on the merits.
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.
Claims 1-3, 5-7, 9-10 and 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Belitz, Chapter 18 in Food Chemistry, 4th revised and extended Ed., Springer, 2009, pages 807-860 (hereinafter referred to as Belitz), Voser, "How to make cannabis-infused jam", [Online], published Nov 21, 2018, [retrieved on 2026-06-10]. Retrieved from the Internet: <URL: https://www.royalqueenseeds.com/us/blog-how-to-make-cannabis-infused-jam-n1051> (hereinafter referred to as Voser), Mukunda US Patent Application Publication No. 2021/0353705 A1 (hereinafter referred to as Mukunda), and evidenced by Brooks US Patent Application Publication No. 2016/0324167 A1 (hereinafter referred to as Brooks).
Regarding claims 1-3, 5-7, 9-10 and 13-14, Belitz teaches a composition (e.g., a fruit jam) comprising at least 50% carbohydrate (e.g., sugar), 31.1-36.9% water, a thickener (e.g., pectin), a flavorant and a food approved antioxidant (e.g., malic acid and citric acid) (e.g., (page 852, 18.2.6.2 and Table 18.38). A fruit jam is known to have trace amount of fat (thus meeting the limitation that the composition comprises less than 2% fat), a uniform or homogenous composition, and to be in the form a gel thus being spreadable and being devoid of an emulsion. Fruits such as plums and blackberries are known to contain dietary fibers, both soluble and insoluble. Further, as evidenced by Brooks (para. [0275]), fruit jams have a water activity of 0.75-0.8. A fruit jam reads on the food product as recited in claim 14.
The amount of water as disclosed by Belitz overlaps with the range as recited in claim 1. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Belitz is silent regarding that the fruit jam comprises at least 0.1% of at least one cannabinoid that comprises cannabidiol (CBD).
Voser teaches that it is suitable to add cannabis to a fruit jam for the health benefit associated with cannabis (page 1; page 3, procedure).
Mukunda teaches that it is suitable to include 0.5-10% CBD and/or 0.0025-2% THC weight/volume (assuming a density of ~1 g/ml for the drink, the weight/volume percent and weight percent is similar) in a food (e.g., energy drink) for the health benefit of relieving fatigue and pain (0011-0012).
Both Belitz and Voser are directed to fruit jams, and where Voser teaches infusing jam with cannabis for the health benefit associated with cannabis, Mukunda teaches that it is suitable to include 0.5-10% CBD and/or 0.0025-2% THC in a food for the health benefit of reliving fatigue and pain.
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Belitz by including cannabis in the jam for the health benefit associated with cannabis. Cannabis is known to contain a cannabinoid such as CBD.
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have manipulated the amount of cannabis added to the jam such that the amount of CBD and THC is 5-10% 0.0025-2% respectively for the promised health benefit. Further, given that the health effect of cannabis is long known, one of ordinary skill in the art would have been motivated to vary the amount of cannabis added to the jam for the desired effect. As such, the amount of cannabinoid as recited in claim 1 is merely an obvious variant of the prior art.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Belitz in view of Voser and Mukunda as applied to claim 1 above, and further in view of Rabault US Patent Application Publication No. 2009/0285944 A1 (hereinafter referred to as Rabault).
Regarding claim 4, Belitz teaches including sugar in a jam but is silent regarding the sugar is sucrose, glucose, fructose and combination thereof.
Rabault in the same field of endeavor teaches that jams, jellies, or fruits pastes are prepared from natural fruits and/or fruit juices, as well as from a large quantity of sugars such as sucrose and glucose syrup in most cases (0003). It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Belitz by using sucrose and glucose as the sugar source in a jam with reasonable expectation of success, for the reason that prior art has established that both sucrose or glucose are art-recognized sugar suitable for making a jam. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.07.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Belitz in view of Voser and Mukunda as applied to claim 1 above, and further in view of Jolivet US Patent Application Publication No. 2021/0076722 A1 (hereinafter referred to as Jolivet).
Regarding claim 8, Belitz teaches what has been recited above but is silent regarding that the jam further comprise a high intensity sweetener.
Jolivet in the same field of endeavor teaches that a commercial apricot jam contain 0.03-0.04% sucralose as a sweetener (0080). It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Belitz by including sucralose as a sweetener in a jam with reasonable expectation of success, for the reason that prior art has established it is suitable to include sucralose in a jam for sweetening purpose. Sucralose reads on the limitation about the high intensity sweetener.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Belitz in view of Voser and Mukunda as applied to claim 1 above, and further in view of Raz WO 2019/198056 A1 (hereinafter referred to as Raz).
Regarding claims 11-12, Voser as recited teaches including cannabis in the jam which necessarily includes a cannabis terpene. Prior art is silent regarding the ratio of the terpene/cannabinoid being 0.05-0.5.
Raz teaches that terpenes play important roles in cannabinoids-comprising products, affecting the functionality and bioavailability of the cannabinoids and the aroma of the product. However, processing cannabis plant material typically leads to terpenes loss so that most of cannabis products are of relatively low terpene content (007). Raz further teaches a terpene-enriched cannabinoid composition in which a weight/weight ratio of the total amount of terpenes to total cannabinoids in the composition is from about 0.1 :1 to about 1 :1 (008).
Both Belitz and Voser are directed to fruit jams, and where Voser teaches infusing jam with cannabis for the health benefit associated with cannabis, Raz teaches that the suitable ratio of terpene/cannabinoid in a cannabis composition is important in improving functionality and bioavailability of the cannabinoids and the aroma of the product. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Belitz in view of Voser by adjusting the amount of terpinene amount in the cannabis such that the weight/weight ratio of the total amount of terpenes to total cannabinoids in the composition is from about 0.1 :1 to about 1 :1. Doing so would help to improve the functionality and bioavailability of the cannabinoids and the aroma of the product.
The ratio as disclosed by Raz overlaps with the range as recited in claim 11. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Claims 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Belitz in view of Voser and Mukunda as applied to claims 1 and 13 above, and further in view of Sakurada US Patent Application Publication No. 2016/0295871 A1 (hereinafter referred to as Sakurada).
Regarding claims 14-16, Belitz as modified by Voser and Mukunda teaches a jam but is silent regarding a food product that comprises at least one layer of an edible solid material where the jam is provided as coating layer on the at least one layer, or a food product comprising a first layer and second layer of an edible solid material wherein the jam is provided between the first and second layer.
Sakurada teaches a dough for a layered cereal flour puffed food in which jam can be added to the dough as the filling or topping (0012; 0051).
Both Belitz and Sakurada are directed to jams. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Belitz by adding the jam as disclosed by Belitz to the dough of Sakurada as the filling or topping with reasonable expectation of success, for the reason that prior art has established that a jam can be added, as a filling or topping, to a dough for layered cereal flour puffed food.
Claims 1-3 and 5-10 are rejected under 35 U.S.C. 103 as being unpatentable over Sebastian WO 2021/116914 A1 (hereinafter referred to as Sebastian).
Regarding claims 1-3 and 5-10, Sebastian teaches an oral composition comprising, inter alia, a flavorant, an active ingredient such as CBD at an amount of 0.1-10%, a carbohydrate (e.g., natural gums such as xanthan gum) at an amount of 0.1-80%, at least 10% water, a food grade polymer such as pectin, a food grade antioxidant (e.g., vitamin C and E), a high intensity sweetener such as sucralose, and a dietary fiber (e.g., MCC) (page 2, line 5-30; page 3, line 1-4; page 13, line 30-35; page 14, line 3-7; page 17, line 25-27; page 22, line 30). Further, Sebastian teaches that the oral composition has a water activity of less than 0.85 (page 3, line 13).
Sebastian teaches that the oral composition is homogenous (e.g., uniform, page 31, line 23-24).
Further, the whole document of Sebastian is silent regarding fat/oil/lipid, and also teaches that in certain embodiment the oral composition is in the form of an emulsion, (page 23, line 13-14), thus meeting the limitation that the composition comprises less than 2% fat and the limitation that the composition is devoid of emulsion.
The amount of carbohydrates, water activity and water as disclosed by Sebastian overlaps with the ranges as recited in claim 1. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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