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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 01/20/2026 has been entered.
All claims are either identical to or patentably indistinct from claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b).
Information Disclosure Statement
The information disclosure statements filed 01/20/2026 have been considered by the examiner.
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.
Claims 1, 4-7, 12-15 and 17-25 are rejected under 35 U.S.C. 103 as being unpatentable over Kirkegaard (US Patent Publication No. 2004/0200248 A1, IDS 05/21/2021l) in view of Allance (fertilizer-machine.net, 2016) as evidenced by intelliStellar (2023).
In regard to claims 1, 13-14 and 22, Kirkegaard discloses slow release fertilizer [0043] comprising:
a nitrogen source, wherein the nitrogen source comprises a combination of 14% urea, 3% ammonium sulfate and 1.2% sodium nitrate [0091-0093];
a carbohydrate (e.g. starch or sugar) in an amount of about 38 wt.% (e.g. 13% corn meal, 12.5% whole wheat flour, 12.5% sucrose) [0091-0093], and although this value does not overlap with the claimed range, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close [MPEP 2144.05]; and
at least one alkali bicarbonate (e.g. potassium bicarbonate) in an amount of 2.5 wt.%, wherein it would have been obvious to increase the amount of alkali bicarbonate to a value within the claimed range because bicarbonate in Kirkegaard’s fertilizer preparation achieves the recognized result of adjusting the fertilizer pH, with additional bicarbonate making the final pH higher [0054] and thus the determination of the optimum or workable ranges of alkali bicarbonate would have been obvious to one of skill in the art for the motivation of achieving the art recognized result of pH adjustment,
wherein the slow-release fertilizer is in a solid or semi-solid form (e.g. a dust-free powder) [0101],
wherein the slow-release fertilizer is a synergistic composition (e.g. the composition is useful for feeding plants while simultaneously harnessing and sustaining microbes) [abstract] and the claimed intended result of providing the claimed fertilizer to crops to achieve a desired increase in crop yield is considered an intended result of the product disclosed or made obvious by the prior art, and
the wt% is based on the total weight of the slow- release composition [0091].
Kirkegaard does not explicitly disclose wherein the nitrogen source comprises 10 to 85 wt% of ammonium bicarbonate. The reference describes nitrogen sources comprising urea and equal moles of ammonium sulfate and sodium nitrate, wherein use of additional ammonium sulfate or sodium nitrate are potential possibilities to regulate final pH in the soil [0047]. The Allance reference further describes common examples of nitrogen fertilizers including ammonium nitrogen fertilizer which includes ammonium bicarbonate (NH4HCO3), ammonium sulfate {(NH4) 2SO4}, ammonium chloride (NH4Cl),ammonia (NH3.H2O), ammonia (NH3) [pg. 2, section 1]. Ammonium bicarbonate provides ammonium and carbon dioxide for crop growth. Similarly, ammonium sulfate is a readily available nitrogen fertilizer but its nitrogen content is low [pg. 2, section 1]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to perform simple substitution of one known element (e.g. the nitrogen-containing ammonium fertilizer as ammonium sulfate as described by Kirkegaard) with another known element (e.g. the nitrogen-containing ammonium fertilizer as ammonium bicarbonate) within the claimed amounts to yield predictable results. One of ordinary skill in the art would have been motivated to do so because ammonium bicarbonate is a known ammonium fertilizer which promotes plant growth and photosynthesis and helps crops come into leaf [pg. 2, section 1]. Kirkegaard further supports the motivation to vary the type and amount of nitrogen-source components by describing the use of nitrogen sources a pH regulators [0047], as well as adjusting the amount of bicarbonate in the fertilizer preparation to regulate pH [0054]. Furthermore, ammonium carbonate is known to increase the pH levels in soil and provide essential nitrogen to plants [intelliStellar, 1st para.].
In regard to claims 4-7 and 26, Kirkegaard discloses a carbohydrate component comprising a starch (e.g. whole wheat flour, corn meal) or a sugar (e.g. sucrose, corn syrup) [0092-0095].
In regard to claim 12, Kirkegaard discloses a composition comprising bio-degradable binders, lubricants, glidants, and antiadherents (e.g. vegetable oil ) [0094].
In regard to claim 15, Kirkegaard discloses a composition further comprising at least one of ammonium sulfate, and ammonium nitrate [0029; 0092].
In regard to claim 17, Kirkegaard discloses a composition comprising nitrogen fertilizer course components [0047] and nutrient components comprising proteins [0050] which necessarily provide an increased in protein in the product.
In regard to claims 18-21 and 23-25, these claim limitations are directed to the intended use and intended results of providing the claimed fertilizer to rice or crops to achieve a desired increase in yield, protein, or absorption. These limitations describe the intended result of a new intended use of a product disclosed or made obvious by the prior art and the composition is not structurally or physically distinguishable from the prior art composition(s) by virtue of the recitation of the newly-discovered use.
Claims 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over Kirkegaard (US Patent Publication No. 2004/0200248 A1, IDS 05/21/2021l) in view of Allance (fertilizer-machine.net, 2016) as evidenced by intelliStellar (2023) as applied to claim 1 above, and further in view of Latting et al. (US Patent No. 6,358,294 B1).
In regard to claims 2-3, Kierkegaard does not explicitly disclose wherein the nitrogen source comprises at least one of urea ammonium nitrate (UAN), monoammonium phosphate (MAP), and diammonium phosphate (DAP) (claim 2) or selected from the group consisting of ureaform, urea formaldehyde, methylene urea, methylene diurea and dimethylenetriurea (claim 3).
Latting is directed to a powder fertilizer comprising water-soluble nitrogen components [Abstract]. The water-soluble, nitrogen-containing fertilizer of particular interest in this invention is ammonium sulfate, but other fertilizer compounds such as urea; other ammonium salts, e.g., ammonium chloride, or ammonium phosphates; nitrates, e.g., ammonium nitrate, calcium nitrate, sodium nitrate, or potassium nitrate; or substituted ureas, e.g., urea-aldehyde condensates or methylene ureas may also be employed [Column 4, lines 14-22]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to perform simple substitution of one known element (e.g. the water-soluble nitrogen-containing ammonium fertilizer as ammonium sulfate as described by Kirkegaard) with another known element (e.g. the water soluble nitrogen fertilizers recited in Latting) to yield predictable results. One of ordinary skill in the art would have been motivated to do so to adjust nutrient content to within a desired amount for the intended fertilizer application.
Claims 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over Kirkegaard (US Patent Publication No. 2004/0200248 A1, IDS 05/21/2021l) in view of Allance (fertilizer-machine.net, 2016) as evidenced by intelliStellar (2023) as applied to claim 1 above, and further in view of Brucher (US Patent Publication No. 2012/0103039 A1).
In regard to 8-11, Kirkegaard does not explicitly teach where the fertilizer is in the form of a tablet or granule or biodegradable package having a diameter of 0.15-5.10 cm.
Nonetheless, while Kirkegaard teaches wherein the fertilizer is in the form of a powder [Paragraph 0043], Brucher teaches wherein a slow release fertilizer made from powders can be pelletized to any desired size such as to 2 cm in diameter for a more convenient form [Paragraph 0134]. Forms and dimensions of pellets and granules are well known to a person skilled in the art (20 mm diameter) [Paragraph 0174]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Brucher with Kirkegaard to specify wherein the fertilizer is in the form of a tablet or granule having a diameter of 0.15-5.10 cm. One of ordinary skill in the art would have been motivated to formulate a composition in a more convenient form for slow release. Furthermore, Kirkegaard’s composition is considered biodegradable due to the materials being absorbed by plant roots.
Response to Arguments
Applicant argues the claimed invention is not taught or suggested by the combination of references for the reasons set forth in the Rule 132 Declaration (01/20/2026). It is noted that the arguments set forth in the Rule 132 Declaration (01/20/2026) are substantially the same as those set forth in the prior Rule 132 Declarations (06/03/2025, 01/15/2025, 06/28/2024) already considered. The verbatim repetition of old arguments is not considered a "bona fide attempt to advance prosecution" and may be treated as a failure to respond to an office action. To be considered a proper reply, Applicant should submit an argument under the heading "Remarks" presenting new arguments, amendments, or evidence.
Applicant argues (paras. bridging pgs. 1-2) Kirkegaard teaches against using ammonium bicarbonate in the fertilizer in para [0030] with the single sentence “In general ammonium salts are toxic to cells.” However, Applicant ignores this sentence in context. Kirkegaard goes on to state that “microbes have long ago acquired the ability to oxidize ammonium ions ultimately to nitrate ions” [0030]. Previously Kirkegaard discloses “Nitrogen can be supplied to the plant ecosystem as ammonium salts, or as Nitrate salts” [0028] and describes the nitrogen uptake reaction [0028] by which ammonium salts are taken up by plants as organic nitrogen. One of skill in the art would not read Kirkegaard’s one sentence in a vacuum as a teaching away from the use of ammonium fertilizers when the reference as a whole is directed to ammonium salts and their positive fertilizing effects. Furthermore, the reference describes the use of ammonium salts such as ammonium sulfate [0047]; claim 2; claim 4] as part of their inventive composition. Thus, in view of the entire teaching of Kirkegaard, the reference does not teach away from the presence of ammonium salts in the fertilizer described by Kirkegaard, at least because of the positive recitation of ammonium salts in the fertilizer of the prior art reference. Below are illustrations of the nitrogen cycle in relation to plants and fertilizers – a quintessential fundamental
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A response to the identical portions of the present 132 Declaration as previously communicated in prior Office Action(s) regarding the 06/02/2025 declaration is repeated herein:
Declarant argues [paras. 5-7, 9-11, 19, 21-22] that one of ordinary skill in the art would not ignore Kirkegaard’s teaching that “In general ammonium salts are toxic to cells.” [0030] and modify the Kirkegaard reference to include ammonium bicarbonate. Declarant’s arguments rely on Kirkegaard’s recitation that “in general ammonium salts are toxic to cells” but this is further described in context of the well-known nitrogen cycle in plants. Kirkegaard goes on to state that “microbes have long ago acquired the ability to oxidize ammonium ions ultimately to nitrate ions” [0030]. Ammonium is directly absorbed by plants at low rates. Ammonium is transformed into nitrate by soil microbes. Kirkegaard goes on to describe the nitrogen cycle whereby nitrogen supplied to the plant ecosystem as ammonium salts or nitrate salts is involved in the nitrogen uptake reaction [0028]. One of skill in the art would not read Kirkegaard’s one sentence in a vacuum as a teaching away from the use of ammonium fertilizers when the paragraph further describes ammonium salts fertilizing effects. Furthermore, the reference describes the use of ammonium salts such as ammonium sulfate [0047]; claim 2; claim 4] as part of their inventive composition. Indeed, ammonium salts are the third most common nitrogen fertilizer product used worldwide and Applicant’s interpretation of one sentence in the prior art reference runs counter to knowledge common in the art and the general teachings of Kirkegaard. There is no express or implied teaching in Kirkegaard or general knowledge in the art that “adding the ammonium bicarbonate […] would kill the microbes in Kirkegaard” [Declaration; 0007]. Declarant argues Kirkegaard does not teach how to obtain a safe diverse population of microbes. One of skill in the art would understand microbes live in soil and in and around plants as part of natural soil microbial communities.
Declarant argues [paras. 8, 27-29] the present invention achieves unexpected advantages and increases protein level in rice over 10.4% [Specification; 0134; Example 3; Table 11]. In response to applicant's argument that the claimed invention achieve improved plant growth metrics, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Furthermore, Applicant’s results are not commensurate in scope with the claimed invention. Evidence that the composition possesses superior and unexpected properties is demonstrated by a single Formulation Name ABC+Urea+SBC-3.5 which requires several components not claimed and only represents a single value within the larger claimed range. Declarant argues they are not required to compare the advantages of the claimed invention to the theoretical fertilizer of the combined prior art [0014]. However, Applicant has not offered comparison data to their own claimed invention, regardless of the prior art. Declarant’s evidence is directed to a single unclaimed formulation (ABC+Urea+SBC-3.5) and results are not commensurate in scope with at least independent claim 1. MPEP § 716.02(d) provides: “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the 'objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Declarant argues [para. 13] Kirkegaard discloses the use of microbes for supplying the slow release fertilizer and Kirkegaard does not list ammonium bicarbonate as a suitable carbonate. In response to this argument the Examiner points to [0009] of Kirkegaard demonstrating “feeding of plants at the primary level by supplying them with basic elemental nutrients. Nitrogen, Phosphorous, and Potassium are considered the "big three".” Kirkegaard describes fertilizer nutrients which are part of the nitrogen cycle (e.g. ammonium is transformed into nitrate by soil microbes). While Kirkegaard does not explicitly disclose an ammonium bicarbonate component, the Allance reference further describes common examples of nitrogen fertilizers including ammonium nitrogen fertilizer which includes ammonium bicarbonate (NH4HCO3), ammonium sulfate {(NH4) 2SO4}, ammonium chloride (NH4Cl),ammonia (NH3.H2O), ammonia (NH3) [pg. 2, section 1]. The rejection of the claim(s) is based on the combination of references and what it would have suggested to one of ordinary skill in the art. It would have been obvious to one of ordinary skill in the art to perform simple substitution of one known element (e.g. the nitrogen-containing ammonium fertilizer as ammonium sulfate as described by Kirkegaard) with another known element (e.g. the nitrogen-containing ammonium fertilizer as ammonium bicarbonate) within the claimed amounts to yield predictable results.
Declarant argues [para. 14] Kirkegaard performs a water flushing step once a month and a farmer would never flush the soil once a month nor inject microbes into a flushed soil. In response to these assertions, the embodiments described are not relied upon in the rejection of the claimed slow release fertilizer.
Declarant argues [para. 15] the Brucher reference describes heating steps at a temperature above which ammonium bicarbonate decomposes and a combination of Kirkegaard and Brucher would not result in a composition containing ammonium bicarbonate. In response to this argument, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In this case, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Here, Kirkegaard discloses a solid fertilizer composition but does not explicitly teach where the fertilizer is in the form of a tablet or granule or biodegradable package having a diameter of 0.15-5.10 cm. Brucher teaches wherein a slow release fertilizer made from powders can be pelletized to any desired size such as to 2 cm in diameter for a more convenient form [Paragraph 0134]. The heating steps referenced by Declarant are not described as part of the pelletizing step suggested by the Brucher reference.
Declarant argues [para. 23, 26, 31] Kirkegaard relates to growing orchids and sustaining microbes in contract to the current invention concerned with increasing crop yields. Declarant argues one of ordinary skill in the art would not have been motivated to perform simple substitution of one known element (e.g. the nitrogen-containing ammonium fertilizer as ammonium sulfate as described by Kirkegaard) with another known element (e.g. the nitrogen-containing ammonium fertilizer as ammonium bicarbonate described by Allance) because the combination of hydrogen carbon and oxygen enhances early root and leaf growth “It is well settled that the recitation of a new intended use for an old product does not make a claim to that old product patentable.” In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). In this case, the intended us of Applicant’s claimed fertilizer does not form a patentable distinction over the fertilizer of the prior art.
Declarant argues [para. 25] the theoretical fertilizer resulting from the combination of Kirkegaard with Allance does not exist and the declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness [MPEP 716.02(e)]. In response to this, Declarant has not provided evidence commensurate in scope with the claimed invention to compare with the closest prior art. Evidence that the composition possesses superior and unexpected properties is demonstrated by a single Formulation Name ABC+Urea+SBC-3.5 which requires several components not claimed and only represents a single value within the larger claimed range.
In response to Applicant’s arguments (pgs. 2-3) and Declarant’s arguments (paras. 33-37) against the Latting and Allance references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The claim rejections are based on two or more references and Applicant’s reply is limited to what a subset of the applied references teaches or fails to teach. Declarant argues (pg. 5) the claimed invention is not related to spraying as described in Latting or heating as described by Brucher. The combination of references is not relied upon for the prior art’s teaching of this spraying or heating step and the presence of a spraying or heating step does not teach away from the combination of references in the present rejection.
For these reasons Applicant's arguments filed 01/20/2026 have been fully considered but they are not persuasive.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 February 9, 2026