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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/16/2025 has been entered.
Election/Restrictions
Newly submitted claim 18 is directed to an invention that is not so linked as to form a single general inventive concept under PCT Rule 13.1. Group I (directed to the composition claims 1-10, 12-13, 15-17, and 19-20) and group II (directed to the method of making the composition, claim 18) lack unity of invention because even though the inventions of these groups require the technical feature of the fertilizer composition of claim 1, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Sanders and Liu as discussed in the rejection of claim 1 below.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 18 withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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) 1-6, 9-10, 12-13, 15-16 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sanders (U.S. Patent Pub. No. 2017/0183272 A1, hereinafter “Sanders”) in view of “Synthetic apatite nanoparticles as a phosphorus fertilizer for soybean,” Liu et al, Scientific Reports, 7/14/2014, hereinafter “Liu.”
Regarding claim 1, Sanders teaches a variety of phosphate and calcium phosphate particulate fertilizers such as MAP, DAP, and/or triple superphosphate [Sanders Para. 0101 & 0102] coated with humic acid or a polymer of monomeric phenol (e.g., a composition containing humic acid and a polymer can be applied as a surface coating to the fertilizers) [Sanders Para. 0102] wherein the humic acid is present in an amount of up to 5.34 parts by weight relative to 100 parts of the calcium phosphate (e.g., when the humic acid/polymer composition is applied as a surface coating to the phosphate fertilizer, it is included in an amount between 0.005% and 15% by weight of the total coated fertilizer product [Sanders Para. 0102]; the ratio of the polymer to the humic acid in the coating is from 1:2 to 1:8 [Sanders Para. 0011] and as such the amount of humic acid necessarily overlaps with the claimed range).
Sanders does not explicitly disclose that the particulate calcium phosphate is specifically hydroxyapatite. However, Liu teaches that certain commercially available phosphate fertilizers such as MAP, DAP, and TSP (triple superphosphate) are highly water soluble and dissolve quickly, and as a result are very mobile in soil and contribute to environmental damage through runoff and seepage [Liu Page 1 last paragraph]. Further, other naturally occurring forms of calcium phosphate can be too insoluble and thus not provide sufficient nutrients [Liu Page 1 last paragraph]. Synthetic hydroxyapatite, on the other hand, a type of calcium phosphate of the formula Ca5(P04)3(OH) or Ca10(PO4)6(OH)2 (Instant Specification at Page 8 Para. 3) is a promising phosphate fertilizer source which causes increased growth rate and seed yield as well as reduces the environmental damage caused by other more soluble phosphate forms [Liu Abstract & Page 1 Para. 2 and 3]. The hydroxyapatite is in the form of nanoparticles [Liu Abstract]. As such, one of ordinary skill in the art would have been motivated to specifically use the hydroxyapatite as taught by Liu et al in the particulate calcium phosphate fertilizer of Sanders in order to take advantage of the reduced solubility as compared to commercially available phosphate sources such as MAP, DAP and TSP and the increased plant growth and yield. 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 humic acid-coated calcium phosphate fertilizer of Sanders to specifically include hydroxyapatite as taught by Liu et al.
Regarding claim 2, Sanders as modified by Liu teaches the hydroxyapatite wherein the polymer of monomeric phenol is a copolymer or a homopolymer of monomeric phenol (the polymer of monomeric phenol is recited in the alternative in claim 1; as such, Sanders as modified by Liu teaching the coating being humic acid reads on the claim).
Regarding claim 3, Sanders as modified by Liu teaches the hydroxyapatite wherein the polymer of monomeric phenol is a copolymer or a homopolymer produced by polymerizing monomeric phenols using an oxidizing agent (the polymer of monomeric phenol is recited in the alternative in claim 1; as such, Sanders as modified by Liu teaching the coating being humic acid reads on the claim).
Regarding claim 4, Sanders as modified by Liu teaches the hydroxyapatite wherein the polymer of monomeric phenol is a copolymer produced by polymerizing a mixture of catechol and gallic acid or a mixture of catechol and ferulic acid using an oxidizing agent (the polymer of monomeric phenol is recited in the alternative in claim 1; as such, Sanders as modified by Liu teaching the coating being humic acid reads on the claim).
Regarding claim 5, Sanders as modified by Liu teaches the hydroxyapatite wherein the oxidizing agent contains at least one selected from a group consisting of copper (I) chloride, ammonium persulfate, sodium periodate, potassium chloride, and an oxidizing enzyme (the polymer of monomeric phenol is recited in the alternative in claim 1; as such, Sanders as modified by Liu teaching the coating being humic acid reads on the claim).
Regarding claim 6, Sanders as modified by Liu teaches the hydroxyapatite wherein the oxidizing enzyme is a peroxidase, a laccase, or a mixture thereof (the polymer of monomeric phenol is recited in the alternative in claim 1; as such, Sanders as modified by Liu teaching the coating being humic acid reads on the claim).
Regarding claim 9, Sanders as modified by Liu teaches a slow-releasing fertilizer composition comprising as an effective ingredient the hydroxyapatite coated with humic acid or a polymer of monomeric phenol of claim 1 (the instant specification states at Page 3 Para. 2 that a slow-release profile can be due to the water dissolution of hydroxyapatite, which is less soluble in water compared to commercial fertilizers. As discussed in the rejection of claim 1 above, Liu teaches that hydroxyapatite is less environmentally damaging due to its decreased solubility as compared to other commercially available phosphate sources [Liu Abstract & Page 1 Para. 2 and 3]. As such, of ordinary skill in the art would readily appreciate that a fertilizer comprising mainly hydroxyapatite will necessarily be slow-release as a result of its lower solubility).
Regarding claim 10, Sanders as modified by Liu teaches a fertilizer for increasing plant growth produced by using the slow-releasing fertilizer composition of claim 9 (e.g., the composition can be used to form fertilizer products and coatings resulting in improved plant growth characteristics) [Sanders Para. 0099 & 0102].
Regarding claim 12, Sanders as modified by Liu teaches the composition comprising as an effective ingredient the hydroxyapatite coated with humic acid or a polymer of monomeric phenol of claim 1, but does not explicitly state that the composition is for increasing plant tolerance to salt stress. However, if a body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. See MPEP 2111.02. As such, Sanders as modified by Liu teaching the composition comprising hydroxyapatite coated with humic acid reads on the claim.
Regarding claim 13, Sanders as modified by Liu teaches the fertilizer produced by the composition of claim 12 (e.g., the composition can be used to form fertilizer products and coatings resulting in improved plant growth characteristics), but does not explicitly state that the fertilizer is for increasing plant tolerance to salt stress. However, if a body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. See MPEP 2111.02. As such, Sanders as modified by Liu teaching the fertilizer comprising hydroxyapatite coated with humic acid reads on the claim.
Regarding claim 15, Sanders teaches particles surrounded by a shell of humic acid (e.g., a composition containing humic acid and a polymer applied as a surface coating to particulate or granular phosphate- and/or calcium-phosphate based fertilizers) [Sanders Para. 0102]. Sanders does not explicitly state that the phosphate-based fertilizer is hydroxyapatite. However, Liu teaches that certain commercially available phosphate fertilizers such as MAP, DAP, and TSP (triple superphosphate) are highly water soluble and dissolve quickly, and as a result are very mobile in soil and contribute to environmental damage through runoff and seepage [Liu Page 1 last paragraph]. Further, other naturally occurring forms of calcium phosphate can be too insoluble and thus not provide sufficient nutrients [Liu Page 1 last paragraph]. Synthetic hydroxyapatite nanoparticles, on the other hand, are a promising calcium phosphate fertilizer source which causes increased growth rate and seed yield as well as reduces the environmental damage caused by other more soluble phosphate forms [Liu Abstract & Page 1 Para. 2 and 3]. As such, one of ordinary skill in the art would have been motivated to specifically use the hydroxyapatite as taught by Liu et al in the calcium phosphate fertilizer of Sanders in order to take advantage of the reduced solubility as compared to commercially available phosphate sources such as MAP, DAP and TSP and the increased plant growth and yield. 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 humic acid-coated calcium phosphate fertilizer of Sanders to specifically include hydroxyapatite as taught by Liu et al.
Regarding claim 16, Sanders as modified by Liu teaches the particles, but does not explicitly state that the particles have an average size in a long axis of 35 nm to 45 nm. However, Liu further teaches that the synthetic hydroxyapatite nanoparticles implemented in the fertilizer comprise a variety of diameters spanning from ~10 nm to 40 nm [Liu Page 2 Col. 1, “Synthetic nano-sized hydroxyapatite (nHA) characterization”]. As such, in looking to use the hydroxyapatite nanoparticles of Liu in the fertilizer of Sanders as discussed in the rejection of claim 15 above, one of ordinary skill in the art would readily appreciate that a range of diameters which overlap with the claimed range are typical for this material. Note that the spherical particle’s diameter is being regarded as corresponding to its average size in a long axis as claimed. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to in making the fertilizer of Sanders to implement particles having an average long axis within the claimed range as taught by Liu.
Regarding claim 19, Sanders as modified by Liu teaches the fertilizer composition wherein the humic acid or polymer of monomeric phenol is present in an amount of 1.25 to 5.32 parts by weight relative to 100 parts by weight of the hydroxyapatite (e.g., when the humic acid/polymer composition is applied as a surface coating to the phosphate fertilizer, it is included in an amount between 0.005% and 15% by weight of the total coated fertilizer product [Sanders Para. 0102]; the ratio of the polymer to the humic acid in the coating is from 1:2 to 1:8 [Sanders Para. 0011] and as such the amount of humic acid necessarily overlaps with the claimed range).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sanders and Liu as applied to claim 1 above, and further in view of Alexei (Netherlands Patent No. 2003797 C2, hereinafter “Alexei”).
Regarding claim 7, Sanders as modified by Liu teaches the hydroxyapatite coated with humic acid or a polymer of monomeric phenol, but does not explicitly disclose that the hydroxyapatite is in mixture with a tricalcium phosphate. However, Alexei teaches that it is known in the fertilizer art [Alexei Abstract] to use hydroxyapatite [Alexei Page 6 lines 1-3] and calcium phosphates, including specifically tricalcium phosphate, [Alexei Page 7 line 9] and mixtures thereof [Alexei Page 6 lines 1-3] in a fertilizer composition used to promote the growth of a plant [Alexei Page 10 lines 16-19]. Hydroxyapatite and tricalcium phosphates are both calcium-containing compounds suitable for providing at least one plan macronutrient (here, phosphorus) [Alexei Page 5 lines 28-30]. Further, they are both minimally soluble in water [Alexei Page 7 lines 14-15 and Liu Abstract & Page 1 Para. 2 and 3] As such, combining hydroxyapatite and tricalcium phosphate amounts to no more than combining two compositions, each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose, rendering the combination prima facie obvious. 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 to mix hydroxyapatite and tricalcium phosphate as taught by Alexei in the humic acid-coated fertilizer composition of Sanders as modified by Liu.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sanders, Liu and Alexei as applied to claims 1 and 7 above, and further in view of McKay (U.S. Patent Pub. No. 2006/0247783 A1, hereinafter “McKay”).
Regarding claim 8, Sanders as modified by Liu and Alexei teaches that the hydroxyapatite is obtained from chemical synthesis or thermal treatment of bones (e.g., synthetic hydroxyapatite) [Liu Abstract], but does not explicitly teach the source of the tricalcium phosphate being chemical synthesis or thermal treatment of bones. However, McKay teaches that tricalcium phosphate can be purchased commercially or synthesized by methods known in the art [McKay Para. 0027]. As such, one of ordinary skill in the art, in looking for how to source the tricalcium phosphate as taught by the modified Sanders, would readily appreciate that synthesis of tricalcium phosphate is known and possible. Choosing synthetic tricalcium phosphate amounts to no more than choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success (e.g., sourcing tricalcium phosphate for a fertilizer). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to obtain the tricalcium phosphate in the modified fertilizer of Sanders from a synthetic route as taught by McKay. Further, McKay is analogous art to the claimed invention because it is reasonably pertinent to the problem faced by the inventor (e.g., sourcing tricalcium phosphate to be used in combination with hydroxyapatite) [McKay Para. 0027-0028].
Response to Arguments
Applicant’s arguments filed 12/16/2025 with respect to the new matter rejection are found persuasive, and this rejection is withdrawn. Specifically, Applicant’s calculations showing 5.32% as a value recited in the Specification give support for this value to be the endpoint in the claimed range.
Applicant's arguments filed 12/16/2026 with respect to the prior art rejections have been fully considered but they are not persuasive.
Regarding claim 1, Applicant argues that a person of ordinary skill in the art would not look to substitute the calcium phosphates of Sanders and the hydroxyapatite of Liu because of their different solubilities (Remarks Page 7). However, Liu addresses this exact difference and provides motivation to instead implement hydroxyapatite specifically due to its solubility: Synthetic hydroxyapatite is a promising phosphate fertilizer source which causes increased growth rate and seed yield as well as reduces the environmental damage caused by other more soluble phosphate forms [Liu Abstract & Page 1 Para. 2 and 3].
Applicant also argues that the hydroxyapatite of Liu is CMC-stabilized and so a person of ordinary skill in the art would implement CMC-stabilized hydroxyapatite (Remarks Page 8). Even assuming this is true, claim 1 does not require the absence of CMC or any other stabilization component.
Applicant also argues that if a person of ordinary skill in the art were to attempt to coat the phosphates of Sanders by dispersing it in an aqueous solution comprising humic acid, the phosphate would dissolve and no coating would be achieved (Remarks Page 8). Even assuming this is true, claim 1 does not require a coating created via dispersion in an aqueous solution.
Regarding claim 15, Applicant argues that the references do not disclose the humic acid shell. Absent further definition, a coating of humic acid is regarded as reading on a shell. Sanders and Liu as cited teach a coating of humic acid. Applicant also argues that Sanders could not provide a core “if the person of ordinary skill in the art attempted to coat them with an aqueous solution” (Remarks Page 9). However, claim 15 does not set forth or otherwise require any aqueous solution.
For at least the foregoing reasons, Applicant’s arguments are not found persuasive.
Allowable Subject Matter
Claims 17 and 20 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
The cited references do not teach or render obvious the cumulative limitations of claims 17 and 20, with particular attention to the hydroxyapatite particles being coated only with the humic acid or polymer of monomeric phenol.
Sanders, the closest prior art of record, teaches a variety of phosphate and calcium phosphate particulate fertilizers such as MAP, DAP, and/or triple superphosphate [Sanders Para. 0101 & 0102] coated with humic acid or a polymer of monomeric phenol (e.g., a composition containing humic acid and a polymer can be applied as a surface coating to the fertilizers) [Sanders Para. 0102] wherein the humic acid is present in an amount of up to 5.34 parts by weight relative to 100 parts of the calcium phosphate (e.g., when the humic acid/polymer composition is applied as a surface coating to the phosphate fertilizer, it is included in an amount between 0.005% and 15% by weight of the total coated fertilizer product [Sanders Para. 0102]; the ratio of the polymer to the humic acid in the coating is from 1:2 to 1:8 [Sanders Para. 0011] and as such the amount of humic acid necessarily overlaps with the claimed range).
Liu, the other closest prior art of record, teaches that it is advantageous to specifically implement hydroxyapatite nanoparticles as a calcium phosphate source due to their decreased solubility [Liu Page 1 last paragraph & Page 1 Para. 2 and 3].
However, Sanders includes other ingredients in the coating such as an additional polymer, and as such does not coat the particles only with the humic acid or the polymer of monomeric phenol.
Conclusion
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/H.E.R./Examiner, Art Unit 1731
/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731