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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/23/2025 has been entered.
Claims 1, 3, and 5 are pending and being examined. Claims 2, 4, 6-15 are canceled. Claims 1 and 5 are amended with no new subject matter being introduced.
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.
Claims 1, 3 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Tianjin University (CN 1400161 A) in view of BASF (BASF Technical Information, Sodium Nitrite grades, M 6066e, May 2002) or in the alternative further in view of Fitzpatrick (Fitzpatrick, J.J., Powder properties in food production systems. In Handbook of Food Powders. (editors: Bhesh Bhandari, Nidhi Bansal, Min Zhang, Pierre Schuck), Woodhead Publishing, 2013).
Considering claims 1 and 3, Tianjin University teaches a free flowing sodium nitrite comprising a spherical or oval shape granules of sodium nitrite with a moisture content of less than or equal to 0.5% (Tianjin University, abstract). A prima facie case of obviousness exists because the claimed less than 0.15% overlaps the range taught by Tianjin (see MPEP §2144.05(I)).
Tianjin University teaches the particle size is mostly between of 0.5-3 mm (Tianjin University, abstract). A mesh size of more than 60 BSS and/or a particle size of at least 0.25 mm overlaps the range taught by Tianjin University.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, for the sodium nitrite granules to have a mesh size of more than 60 BSS and/or at least 0.25 mm in an amount 61-67% of total content. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have been motivated to do so because such a range of granule size is known to be desired for sodium nitrite granules.
Tianjin University teaches that addition of anti-caking agents to alleviate the problem of caking is known in the industry (Tianjin University, page 1 of English translation (2) Background technology) and he teaches the moisture content of the SNI can be affected by the processing environment (workshop air humidity) and the conditions during the packaging process (Tianjin University, page of English translation (5) Implementation methods), he does not explicitly teach coating his SNI with an anti-caking agent.
However, BASF teaches sodium nitrite absorbs moisture from the air when the relative humidity is as low as 60% and to an increasing extent as it rises; in unfavorable circumstances, as a result of this water absorption, the product can cake very rapidly and thus become hard without undergoing any change in chemical properties; agglomerates are broken up by moving the containers (BASF, Properties section).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to coat the SNI with at least one anti-caking agent to obtain a coated free flowing SNI. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have been motivated to do so in order to alleviate the agglomeration/caking of the SNI in unfavorable circumstances that would result in absorption of moisture with a reasonable expectation of success.
It should be noted that the claims are directed to a product comprising a free flowing sodium nitrite comprising a spherical or oval shape granules of sodium nitrite with a moisture content of less than or equal to 0.5% having a mesh size of more than 60 BSS and/or a particle size of at least 0.25 mm in an amount 61-67% of the total content coated with at least one anti-caking agent.
Tianjin University and BASF obviate the claimed product. Thus, it would be expected that the product of Tianjin/BASF would also have an angle of repose between 25° to 30°.
Tianjin University and BASF obviate the claimed product. Thus, it would be expected that the free flowing sodium nitrite of Tianjin/BASF would also have the claimed untapped bulk density and tapped bulk density ratio of within a range of 1.03 to 1.17. In the alternative, Fitzpatrick teaches Hausner ratios (i.e., untapped bulk density and tapped bulk density ratio) of 1.00-1.11 result in excellent powder flowability and Hausner ratios of 1.12-1.18 result in good powder flowability (Fitzpatrick, Table 3). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to vary the untapped bulk density and tapped bulk density ratio to within the claimed range of 1.03 to 1.17. One of ordinary skill in the art before the effective filing date of the claimed invention, would have been motivated to do so in order to achieve desired flowability with a reasonable expectation of success.
Considering claim 5, it should be noted that the claims are directed to a product comprising a free flowing sodium nitrite comprising a spherical or oval shape granules of sodium nitrite with a moisture content of less than or equal to 0.5% having a mesh size of more than 60 BSS and/or a particle size of at least 0.25 mm in an amount 61-67% of the total content coated with at least one anti-caking agent. Tianjin University and BASF obviate the claimed product; thus, it would be expected that the free flowing sodium nitrite of Tianjin/BASF would also have the claimed untapped bulk density of 0.9-1.14 g/cm3 and tapped bulk density of 0.9-1.3 g/cm3.
Response to Arguments
Applicant’s arguments filed regarding improper hindsight reasoning and Tianjin teaching away from the use of anti-caking agents have been fully considered but are not persuasive.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In the instant case, Tianjin teaches that addition of anti-caking agents to alleviate the problem of caking is known in the industry and that the moisture content of the SNI can be affected by the processing environment (workshop air humidity) and the conditions during the packaging process. BASF teaches sodium nitrite absorbs moisture from the air when the relative humidity is as low as 60% and to an increasing extent as it rises; in unfavorable circumstances, as a result of this water absorption, the product can cake very rapidly and thus become hard without undergoing any change in chemical properties. In response to applicant’s argument that BASF does not teach a coated free flowing SNI, BASF does teach addition of anti-caking agents to a sodium nitrite product with a purity of 99.4 and a water content of 0.1 (sodium nitrite Tech. RW) and teaches sodium nitrite products with 99.4 purity and a water content of 0.1 harden rapidly without added anti-caking agent (sodium nitrite E250 and sodium nitrite Tech. U). In light of BASF’s teachings, it would have been obvious to one of ordinary skill in the art, to add an anti-caking agent to Tianjin’s sodium nitrite having a moisture content of ≤0.5% in order to alleviate the agglomeration/caking of the SNI in unfavorable circumstances that would result in absorption of moisture (i.e., storage in a humid environment or use in a humid environment). Thus, only knowledge which was within the level of ordinary skill at the time the claimed invention was made has been taken into account and does not include knowledge gleaned only from the applicant's disclosure.
Moreover, Tianjin’s mere disclosure that the addition of anti-caking agents reduces the content of active ingredients and anti-caking agents do not need to be added does not constitute a teaching away because such a disclosure does not criticize, discredit, or otherwise discourage the addition of anti-caking agents to alleviate the agglomeration/caking of the SNI in unfavorable circumstances that would result in absorption of moisture. In other words, it would be obvious to one skilled in the art to add anti-caking agents even though they may reduce the content of active ingredients in order to avoid agglomeration/caking of the SNI when using or storing it in an environment with 60% humidity.
Applicant’s arguments that Applicant expressly recognizes implementation of the angle of repose and Hausner ratio as critical parameters contributing to the free flowing nature of the SNI are also not persuasive. As evidenced by Fitzpatrick (Fitzpatrick, J.J., Powder properties in food production systems. In Handbook of Food Powders. (editors: Bhesh Bhandari, Nidhi Bansal, Min Zhang, Pierre Schuck), Woodhead Publishing, 2013), it is already known in industry that Hausner ratios (i.e., untapped bulk density and tapped bulk density ratio) of 1.00-1.11 result in excellent powder flowability and Hausner ratios of 1.12-1.18 result in good powder flowability (Fitzpatrick, Table 3); it is also known in industry that angle of repose is used to assess powder flowability with a greater angle being indicative of a more cohesive powder (i.e., lower angle of repose leading to better flowability) (Fitzpatrick, section 5/2/1).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANITA NASSIRI-MOTLAGH whose telephone number is (571)270-7588. The examiner can normally be reached M-F 6:30-3:00.
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/ANITA NASSIRI-MOTLAGH/Primary Examiner, Art Unit 1734