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 § 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, 8, 36, 38-41, 43-49 are rejected under 35 U.S.C. 103 as being unpatentable over Mollerstedt (3639643) in view of Russo(3388014).
Regarding claims 1-3, 8, 38, 40, and 49, Mollerstedt discloses the use of aluminum sulfate as an additive to phase stabilized ammonium nitrate for improving the porosity and crush strength and to eliminate the phase change. The prior art also discloses the similar thermal cycling method decrease the density of the prills (col. 2 and 3).
Russo discloses explosive grade phase stabilized ammonium nitrate prill (col. 1, lines 40-65) including a potassium salt such as potassium nitrate from .35-5 %, iron sulfate, an inorganic porosity enhancing agent (col. 4, lines 40-70), and a fuel such as fuel oil (col. 1, lines 40-55). Russo discloses the porosity enhancing agent to be effective at .2 % which corresponds to 2000 ppm which meets the claim limitation.
It would have been obvious to one having ordinary skill in the art at the time the invention was made and/or filed to use a PSAN prill as taught by Mollerstedt with the potassium additive and fuel of Russo since Mollerstedt discloses that it is preferred to have a PSAN prill without a phase change for improved handling. The additives shown by Russo will further improve the prills of Mollerstedt by stabilizing and providing fuel to perform as an explosive. It is also obvious to use different lengths of thermal cycles and temperatures since Mollerstedt discloses that the phase stabilized ammonium nitrate can be heated in different manners to modify the porosity and crush strength. It is obvious to use the amount of the porosity enhancing agent as disclosed by Russo since both patents disclose the use of a porosity enhancing agent. Russo uses a different chemical than that disclosed by Mollerstedt but one of skill in the art would be motivated to use this amount since it would reduce the amount of chemicals being used and since Russo discloses that it is an effective amount.
Regarding claims 36 and 41, table 1 shows the claimed prill to fuel oil amount ranging to 6.7 % fuel oil with the balance being the ammonium nitrate prill. The reference indicates that the percent of fuel oil in the prill is represented by the porosity percent. Thus, these are the same percent and range to 6.7%.
Regarding claim 39, table 1 shows the claimed prill density as low as .69.
Regarding claim 43, Russo discloses that the phase stabilized ammonium nitrate prill got undergoes thermal cycling to remove the 32° crystalline phase change. The reference does not disclose the 84° crystalline phase change but this would be considered an inherent property due to the thermal cycling that is performed in Russo (col. 2, lines 40-65). As to limitations which are considered to be inherent in a reference, note the case law of In re Ludke, 169 USPQ 563; In re Swinehart, 169 USPQ 226, In re Fitzgerald, 205 USPQ 594; In re Best et al, 195 USPQ 430; and In re Brown, 173 USPQ 685, 688.
Regarding claim 47 the shelf life is considered an inherent property of the phase stabilized ammonium nitrate as taught. Also the use of the composition is considered to be a method limitation.
Regarding claims 44 through 46, Russo discloses the thermal cycling at various temperatures and time lengths. Russo does not disclose the exact claimed crush strength but has a chart of crush strength shown in figure 2. The crush strength is considered an inherent property of the prills as taught by Russo since Russo indicates that thermal cycling can be used to improve the crush strength of phase stabilized ammonium nitrate prills and also since Russo discloses multiple thermal cycles to improve the porosity and crush strength of phase stabilized ammonium nitrate. These limitations are also considered to be product by process limitations. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive. In response to applicant's arguments against the 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).
Russo discloses the porosity enhancing agent to be effective at .2 % which corresponds to 2000 ppm which meets the claim limitation. It is obvious to use the amount of the porosity enhancing agent as disclosed by Russo since both patents disclose the use of a porosity enhancing agent. Russo uses a different chemical than that disclosed by Mollerstedt but one of skill in the art would be motivated to use this amount since it would reduce the amount of chemicals being used and since Russo discloses that it is an effective amount.
Applicant’s arguments regarding the prill strength and crush strength are not persuasive since the claims do not recite these features. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies are not recited in the rejected claim(s). 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).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AILEEN BAKER FELTON whose telephone number is (571)272-6875. The examiner can normally be reached Monday 9-5:30, Thursday 11-3, Friday 9-5:30.
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/AILEEN B FELTON/Primary Examiner, Art Unit 1734
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