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 .
Response to Amendment
In response to the amendment received 1/12/2026:
Claims 1, 3-4, 7, and 11-20 are presently pending
Claims 18-20 are withdrawn
Claims 2, 5-6 and 8-10 are cancelled
All prior art grounds of rejection are maintained
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.
Claim(s) 1, 7, and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo (Chinese Patent No. 106748517 B) with reference to the provided machine translation (hereinafter referred to as “Guo”) in view of Yamashita (U.S. Patent Pub. No. 2015/0239788 A1, hereinafter referred to as “Yamashita”).
Regarding claim 1, Guo teaches a fertilizer granule (a granular composite soil conditioner [Guo Abstract] which can be used as a fertilizer [Guo Para. 0030]) comprising a homogeneous mixture (the components are fully mixed in a tank stirring mixer [Guo Para. 0124] which will necessarily result in homogeneity) comprising:
63 to 65 wt. % phosphogypsum (e.g., 10 to 90 parts phosphogypsum [Guo Para. 015]; see specifically Guo’s Example 12 which contains 90 parts or 65.7% phosphogypsum) [Guo Example 12 Para. 0117]
3.8 to 5 wt. % magnesium (e.g., 1 to 20 parts magnesia [Guo Para. 015]; see specifically Guo’s Example 12 which contains 3.74% magnesium) [Guo Example 12 Para. 0117 & 0119] zinc sulfate in an amount providing 0.5 to 2.5 wt. % zinc (e.g., 0.02 to 3 parts of zinc oxide or salt [Guo Para. 015]; see specifically Guo’s Example 12 which contains 0.76% zinc from zinc sulfate monohydrate) [Guo Example 12 Para. 0117 & 0119]
0.1 to 0.4 wt. % of boron (e.g., 0.02 to 3 parts boron oxide or salt [Guo Para. 015]; see specifically Guo’s Example 12 which contains 0.23% boron from sodium borate pentahydrate) [Guo Example 12 Para. 0117 & 0119] and
potassium humate (e.g., 0.6 to 20 parts of humic acid or humate [Guo Para. 0015 & 0017]; see specifically Guo’s Example 12 which contains 20 parts or 14% potassium humate) [Guo Example 12 Para. 0117 & 0119],
wherein the weight % are based on the total weight of the fertilizer granule (all percentages are by mass, and appear to refer to the total fertilizer) [Guo Para. 0014].
Note that similar or overlapping ranges create a prima facie case of obviousness. Further, where the prior art and the claimed range do not overlap but are merely close, a prima facie case of obviousness also exists. See MPEP 2144.05.
Guo does not explicitly teach that (1) the potassium humate is present between 0.5 and 5 wt. % or (2) the magnesium is in the form of magnesium sulfate.
As to (1), Guo generally discloses 0.6 to 20 parts of humic acid or humate [Guo Para. 0015 & 0017] in the fertilizer, wherein potassium humate is specifically implemented as the salt [Guo Example 12 Para. 0117], but does not explicitly combine the amount of 0.5 to 3 wt. % in a single embodiment with the other claimed ingredients as discussed above. However, Guo’s general disclosure of a broader range of parts of humic components would lead one of ordinary skill in the art to readily adjust the potassium humate accordingly. As such, in Guo’s in example 12, one of ordinary skill in the art would readily adjust the included 20 parts to any amount of parts within Guo’s generally disclosed range of 0.6 to 20 parts, which necessarily overlaps with the claimed range. Therefore, it would have been obvious to one of ordinary kill in the art before the effective filing date of the claimed invention to adjust the potassium humate of Guo’s Embodiment 12 to within the claimed range.
As to (2), Guo teaches the inclusion of magnesium in an amount within the claimed range (e.g., 1 to 20 parts magnesia [Guo Para. 015]; see specifically Guo’s Example 12 which contains 3.74% magnesium) [Guo Example 12 Para. 0117 & 0119]. However, Guo teaches that the magnesium is sourced as magnesium oxide (also known as magnesia) [Guo Para. 0002] and as such does not explicitly disclose that the Mg is in the form of magnesium sulfate as claimed. However, Guo implements magnesia in order to take advantage of its properties as a binder in granules [Guo Para. 0027] as well as in order to provide the micronutrient magnesium [Guo Para. 0027]. Yamashita teaches that magnesium sulfate is also suitable for this same purpose: Both magnesium oxide and magnesium sulfate can serve as binders in fertilizer pellets [Yamashita Para. 0112] and provide the nutrient magnesium [Yamashita Para. 0080]. Both magnesium forms can be used for these purposes in an amount between 1 to 25 wt. % [Yamashita Para. 0082 & 0113]. As such, one of ordinary skill in the art would readily substitute magnesium oxide for magnesium sulfate in light of the teachings of Yamashita establishing the two options as art recognized equivalents. This change amounts to no more than substituting equivalents known for the same purpose, creating a case of prima facie obviousness. See MPEP 2144.06. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the fertilizer granule of Guo to substitute the magnesium oxide for magnesium sulfate as taught by Yamashita.
Regarding claim 7, Guo as modified by Yamashita discloses the fertilizer granule wherein the B is sourced as a water soluble tetraborate and/or tetraborate salt (Guo’s Example 12 uses sodium borate pentahydrate) [Guo Para. 0117].
Regarding claim 14, Guo as modified by Yamashita discloses the fertilizer granule having a crush strength above 1.8 KgF (e.g., Embodiment 12 has a crush strength of 36 N, or 3.7 KgF) [Guo Para. 0119].
Claim(s) 3, 4 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Yamashita as applied to claim 1 above, and further in view of Abu Rabeah (U.S. Patent Pub. No. 2021/0395158 A1, hereinafter referred to as “Abu Rabeah”).
Regarding claim 3, while Guo as modified by Yamashita discusses the inclusion of a binder, glue or adhesive such as white latex, water glass [Guo Para. 0019] or magnesium oxide [Guo Para. 0027] or magnesium sulfate [Yamashita Para. 0112] to improve the granulation of phosphogypsum [Guo Para. 0027], Guo does not specifically disclose the granule comprising 2 wt. % to 10 wt. % of a binder. However, Abu Rabeah teaches that it is known in the fertilizer art to also use bentonite or lignosulfonates as binders [See Abu Rabeah at Para. 0019] in granules in the amount of 0.5 wt. % to 20 wt. % to improve the compaction process and enhance granule strength [Abu Rabeah at Para. 0022]. The granules of Abu Rabeah can also contain phosphogypsum as a fertilizer source [Abu Rabeah at Para. 0047]. As such, one of ordinary skill in the art would readily appreciate that bentonite and lignosulfonates are appropriate binders in granular, phosphogypsum-containing fertilizers. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the granule of Guo to also include the binders of Abu Rabeah in an amount overlapping with the claimed range. Similar or overlapping ranges create a prima facie case of obviousness.
Regarding claim 4, Guo as modified by Yamashita and Abu Rabeah in the rejection of claim 3 above discloses the fertilizer granule wherein the binder is calcium lignosulfate and/or bentonite [Abu Rabeah Para. 0019].
Regarding claim 11, Guo as modified by Yamashita discloses the fertilizer granule and discusses the inclusion of a binder, glue or adhesive [Guo Para. 0019] or magnesium oxide [Guo Para. 0027] but does not explicitly state that the granule contains 3 wt. % to 7 wt. % of bentonite, or 3 wt. % to 7 wt. % of calcium lignosulfate, or both 3 wt. % to 7 wt. % of bentonite and 3 wt. % to 7 wt. % of calcium lignosulfate. However, Abu Rabeah teaches that it is known in the fertilizer art to also use bentonite or lignosulfonates as binders [See Abu Rabeah at Para. 0019] in granules in the amount of 0.5 wt. % to 20 wt. % to improve the compaction process and enhance granule strength [Abu Rabeah at Para. 0022]. The granules of Abu Rabeah can also contain phosphogypsum as a fertilizer source [Abu Rabeah at Para. 0047]. As such, one of ordinary skill in the art would readily appreciate that bentonite and lignosulfonates are appropriate binders in granular, phosphogypsum-containing fertilizers. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the granule of Guo to include the bentonite or lignosulfonates of Abu Rabeah in an amount overlapping with the claimed range. Similar or overlapping ranges create a prima facie case of obviousness.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Yamashita as applied to claim 1 above, and further in view of “Solubility – the Key to Plant Nutrition,” TurfCare, published September 24, 2018 (hereinafter referred to as “Solubility”).
Regarding claim 12, Guo as modified by Yamashita does not explicitly disclose the solubility of the fertilizer granule (e.g., wherein 10 mg to 30 mg of the fertilizer granules dissolves in 1 mL of water at a pH 7, under stirring at a rate 90 rpm to 110 rpm, and at an ambient temperature, within 5 minutes of adding 100 mg of the fertilizer granules to the water). However, Solubility teaches that fertilizer granule solubility is a result effective variable which depends on the various components within the fertilizer (See Solubility at the Table on Page 3) as well as temperature and pH [Solubility Page 1 Para. 1]. While some amount of solubility is necessary for plants to be able to use the nutrients [Solubility Page 1, end of Para. 3], fertilizers containing compounds with decreased solubility allow nutrients such as nitrogen to slowly become available to the plant [Solubility Page 3 Para. 2] which avoids burning [Solubility Page 3 Para. 1]. As such, one of ordinary skill in the art would have been motivated to adjust the solubility of the fertilizer to within the claimed range so as to arrive at a fertilizer granule which gradually releases nutrients while avoiding burning. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the granule of the modified Guo to optimize the solubility as taught by Solubility so as to arrive at a fertilizer with the described solubility characteristics as claimed.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Yamashita as applied to claim 1 above, and further in view of Sutton (U.S. Patent No. 3880641, hereinafter referred to as “Sutton”).
Regarding claim 13, Guo as modified by Yamashita discloses the granule having a moisture content of 2.3% [Para. 0120] but does not specifically disclose a granule having a moisture content of less than 1 wt. % measured at 50 °C. However, Sutton teaches that it is known in the fertilizer art to avoid high moisture content in granular fertilizers so as to avoid caking during storage [See Sutton at Col. 2 lines 37-47]. Sutton points to several fertilizers having moisture contents of 0.2% and 0.7% [Col. 5, Table III]. As such, in making a fertilizer granule, one of ordinary skill in the art would readily appreciate that a low moisture content such as 0.2% or 0.7% is acceptable, and would have been motivated to decrease the moisture content to such a percentage so as to avoid caking. Therefore, it would have been obvious to one of ordinary skill in the art to decrease the moisture content of the fertilizer granule of Guo to below 1 wt. % measured at 50 °C as claimed.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Yamashita as applied to claim 1 above, and further in view of Ginn (U.S. Patent Pub. No. 2015/0027181 A1, hereinafter referred to as “Ginn”) and “Specifications for Granular Fertilizer and Soil Amendment Products,” Carlson et al, FEECO International, with reference to the provided snapshot dated October 28, 2020 (hereinafter referred to as “Carlson et al”).
Regarding claim 15, Guo as modified by Yamashita does not explicitly disclose the granule as capable of losing less than 0.13 wt. % in an attrition loss test. However, Ginn teaches the production of pelletized or granulated synthetic gypsum (phosphogypsum is known to be a type of synthetic gypsum) to make fertilizer [See Ginn at Para. 0004]. Ginn teaches that it is known in the fertilizer art to produce synthetic gypsum pellets demonstrating 0.1 % attrition loss [Para. 0044]. Further, Carlson et al teaches that minimizing attrition is desirable to reduce product lost as dust [See Carlson et al at Page 6, “Attrition”] and largely depends on particle shape, with round granular products having particularly decreased attrition, and angular granular products having increased attrition [See Carlson et al at Page 6, “Factors that Influence Attrition”]. Solubility is also known to contribute to the overall rate of breakdown of fertilizer granules [See Carlson et al at Page 6, “Solubility”]. As such, one of ordinary skill in the art would readily appreciate the need to minimize attrition to less than 0.13 wt. % to avoid product loss, and would have known how to do so by adjusting the granule shape and solubility. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the fertilizer granule of Guo to minimize attrition as taught by Ginn and Carlson et al such that the granule is capable of losing less than 0.13 wt. % in an attrition loss test as claimed.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Yamashita as applied to claim 1 above, and further in view of Carlson et al.
Regarding claim 16, Guo does not explicitly disclose the granule having a bulk density of 1 g/cc to 1.2 g/cc. However, Carlson et al teaches that fertilizer bulk density is a result effective variable which depends on moisture content, production methods, and particle shape [Pages 5-6, “Factors that Influence Bulk Density”]. Carlson et al teaches that when the bulk density is high, more material can fit into a smaller space, which is efficient for storage. On the other hand, material with a high bulk density may settle during transportation, which leads consumers to think they are receiving less product [Carlson et al at Page 5, “Packed bulk density”]. Further, it is known in the fertilizer art that bulk density can be adjusted by changing moisture content (moisture adds to bulk density), particle shape, or mixing technique during production (an intense mixer will result in denser granules) [Carlson et al at Page 5, “Factors that Influence Bulk Density through Page 6, “Particle Shape”]. As such, one of ordinary skill in the art would have been motivated to adjust the bulk density of the fertilizer granules to within the claimed range so as to arrive at a fertilizer efficient for storage without concerning the customers, and would have known how to do so by optimizing moisture content, particle shape, and mixing technique. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the fertilizer granule of Guo to optimize the bulk density so as to arrive at a granule having a bulk density of 1 g/cc to 1.2 g/cc as claimed.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guo and Yamashita as applied to claim 1 above, and further in view “Guidance for Compatibility of Fertilizer Blending Materials,” Fertilizers Europe, issued 2014 (hereinafter referred to as “Guidance for Compatibility”).
Regarding claim 17, Guo does not explicitly teach the granule comprised in a fertilizer blend comprising the granule and an additional fertilizer comprising urea, diammonium phosphate, single super phosphate, triple super phosophate, muriate of potash, ammonium sulfate, or any combination thereof. However, Guidance for Compatibility teaches that it is standard in the fertilizer art to blend solid complex granular fertilizers [Page 4 Para. 3] to make a particular desired ratio of nitrogen, phosphorus, and potassium (see flow chart on [Page 8]). For example, calcium sulphate (found in phosphogypsum) is compatible with diammonium phosphate and urea [Page 12 Table 2]. As such, one of ordinary skill in the art, in looking to make a fertilizer comprising a desired N/P/K ratio, would know that it is standard practice to blend complex solid granules (i.e., the granules of Guo) with another nutrient source such as urea or diammonium phosphate. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the fertilizer granule of Guo to further blend it with an additional fertilizer so as to arrive at a blend as claimed.
Response to Arguments
Applicant's arguments filed 1/12/2026 have been fully considered but they are not persuasive.
Applicant argues that the amount of potassium humate in Guo’s example 12 is higher than the claimed range (Remarks Page 6). However, Guo’s general disclosure provides for a broader range of potassium humate, rendering the range obvious, as discussed in the rejection of claim 1 above.
Applicant also points to the amounts of phosphogypsum and magnesium disclosed by Guo being different than those claimed. As to the phosphogypsum, Guo’s Example 12 includes 65.7% phosphogypsum, which is regarded as being close to 65% as claimed, creating a prima facie case of obviousness. Further, Guo’s Example 3 includes 3.74% magnesium, which is regarded as being close to 3.8% as claimed, creating a prima facie case of obviousnesss. See Guo Example 12 Para. 0117.
Applicant appears to submit a rebuttal of the prima face case of obviousness by asserting unexpected results (Remarks Page 7). 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." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). Here, Applicant points to the PGG-1, PGG-2, PGG-3, and PGG-4 formulations, which contain discrete values of phosphogypsum, magnesium sulfate, zinc sulfate, boron, and potassium humate (See the Specification at Table 2 on Page 24). A range of 63 to 65 wt. % phosphogypsum is claimed, but these formulations only test one example which actually falls within this range (PGG-1 containing 63% phosphogypsum). Further, these formulations contain particulars which are not claimed in claim 1: For example, disodium tetraborate pentahydrate in PGG-1, and bentonite and calcium lignosulfonate in PGG-4. Claim 1 only requires the presence of boron, not the specific form being disodium tetraborate pentahydrate. As such, unexpected results which rely on PGG-1 or the other examples in table 2 are not commensurate in scope with the claims.
Applicant also argues that there is no motivation to combine Guo and Yamashita because Yamashita focuses on compositions containing cellulose (Remarks Page 7). This is not found persuasive because Yamashita establishes that both magnesium oxide and magnesium sulfate can serve as binders in fertilizer pellets [Yamashita Para. 0112] and provide the nutrient magnesium [Yamashita Para. 0080]. Both magnesium forms can be used for these purposes in an amount between 1 to 25 wt. % [Yamashita Para. 0082 & 0113]. As such, one of ordinary skill in the art would readily substitute magnesium oxide for magnesium sulfate in light of the teachings of Yamashita establishing the two options as art recognized equivalents. The fact that the composition of Yamashita is not identical to the composition of Guo or contains some different components is not dispositive to the obviousness rejection. One of ordinary skill in the art, in making a fertilizer granule containing a magnesium-based binder, would still readily look to Yamashita to identify suitable amounts and substitutions thereof.
For at least the foregoing reasons, these arguments are not found persuasive.
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.
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/H.E.R./Examiner, Art Unit 1731
/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731