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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 9, 2025 has been entered.
Claims 1-4, 7-11, 13-18, 20-22, and 24-25 are pending in the application. Claims 20-22, 24, and 25 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention. Claims 1, 3, 4, 10, 11, 14 and withdrawn claims 20, 24, and 25 have been amended. Claims 1-4, 7-11, and 13-18 will currently be examined.
Status of the Claims
The rejection of claims 1-8, 10-19 and 23 under 35 U.S.C. 103 as being unpatentable over McKnight et al. (US 2015/0143860) in view of Sutton et al. (US 8,562,711) is withdrawn due to Applicant’s convincing arguments.
The rejection of Claim 9 under 35 U.S.C. 103 as being unpatentable over McKnight et al. (US 2015/0143860) in view of Sutton et al. (US 8,562,711) as applied to claims 1-8, 10-19 and 23 above, and further in view of McKnight et al. ‘062 (US 2015/0299062) is withdrawn due to Applicant’s convincing arguments.
The rejection of claims 1-4, 7-11, and 13-18 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 11,352,303 (‘303) is maintained.
The rejection of claims 1-9, 16, 19, and 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 9,650,306 (‘306) is withdrawn due to convincing arguments discussed during Interview dated 9/23/2025.
The rejection of claims 1, 3, 5-8, 12-13, 16, 19 and 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 9,637,420 (‘420) is withdrawn due to convincing arguments discussed during Interview dated 9/23/2025.
The rejection of claims 1, 2, 3, 4, 7-11, and 13-14 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1, 2, 3, 4, 5, 6, 7, and 9-15 of U.S. Patent No. 12,139,443 (‘443) in view of McKnight et al. ‘062 (US 2015/0299062) is maintained.
The rejection of claims 1, 3, 5, 6, 7, 8, 9, 12, 13, 14, 19, and 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-9, 12-15 and 17-21 of U.S. Patent No. 11,312,667 (‘667) is withdrawn due to convincing arguments discussed during Interview dated 9/23/2025.
The rejection of claims 1, 3, 5, 6, 7, 8, 12, 13, 14, 19, and 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 12,116,325 (‘325) is withdrawn due to convincing arguments discussed during Interview dated 9/23/2025.
The rejection of claims 1, 3, 5, 6, 7, 8, 9, 12, 13, 14, 19, and 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19-21 of U.S. Patent No. 11,001,537 (‘537) in view of Sutton et al. (US 8,562,711) is withdrawn due to convincing arguments discussed during Interview dated 9/23/2025.
The rejection of claims 1, 3, 5, 6, 7, 8, 9, 12, 13, 14, 19, and 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 4-19 of U.S. Patent No. 10,597,338 (‘338) in view of Sutton et al. (US 8,562,711) is withdrawn due to convincing arguments discussed during Interview dated 9/23/2025.
The rejection of claims 1, 3, 5, 6, 7, 8, 9, 12, 13, 14, 19, and 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 4, 5, 14, 15, 16, 18, 19, 20 of U.S. Patent No. 11,198,653 (‘653) in view of Sutton et al. (US 8,562,711) is withdrawn due to convincing arguments discussed during Interview dated 9/23/2025.
The rejection of claims 1, 2, 3, 4, 7-11 and 13-14 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5, 6, 8, 11, 13, 18, 20 of U.S. Patent No. 12,497,344 (‘344) (formerly co-pending Application No. 17/678,427 (‘427)) is maintained.
Rejections not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 7-11, and 13-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 11,352,303 (‘303). Although the claims at issue are not identical, they are not patentably distinct from each other because each claim a dry, flowable additive composition adapted for combination with a fertilizer and to impart a fertilizer an increased longevity of plant available nitrogen in the soil from the fertilizer, the dry, flowable additive composition comprising a) powder or granular nitrification inhibitor (dicyandiamide) that is coated with b) a formulation comprising N-(n-butyl)thiophosphoric triamide (NBPT) solubilized within dimethyl sulfoxide (DMSO), wherein the additive composition comprises 80-99 % of the nitrification inhibitor, wherein the liquid formulation is a fluid liquid solution at 60-70°C and comprises a composition % weight of 80-90% of N-(n-butyl)thiophosphoric triamide within dimethyl sulfoxide that delivers an even coating of N-(n-butyl)thiophosphoric triamide onto the surfaces of the nitrification inhibitor while not causing clumping on granules or powders (claims 1-6, 16, 19 and 23, instant invention; claim 1, U.S. Patent No. ‘303). Each claims the composition further comprises one or more members selected from the group consisting of a) surfactants…and e) flow modifiers (claims 7, 13 instant invention; claim 2, U.S. Patent No. ‘303). Each claims the composition further comprises one or more addition aprotic solvents (claim 8, instant invention; claim 3, U.S. Patent No. ‘303). Each claims the composition further comprises one or more protic solvents (claim 9, instant invention; claim 4, U.S. Patent No. ‘303). Each claims a composition produced by a specific process (claim 10, instant invention; claim 5, U.S. Patent No. ‘303). Each claims the liquid formulation comprises a colorant to provide visual confirmation that the NBPT has been applied on the surface of the powder or granular nitrification inhibitor (claim 14, instant application; claim 6, U.S. Patent No. ‘303). For these reasons, one of ordinary skill in the art would conclude that the invention defined in the instant claims is obvious over the claims of U. S. Patent No. ‘303.
Claims 1, 2, 3, 4, 7-11, and 13-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 4, 5, 6, 7, and 9-15 of U.S. Patent No. 12,139,443 (‘443) in view of McKnight et al. ‘062 (US 2015/0299062). Although the claims at issue are not identical, they are not patentably distinct from each other because each is drawn to a dry, flowable fertilizer composition, wherein the dry, flowable fertilizer comprises: a) one or more particulate nitrogen sources, b) a solid coating composition that is heated to a temperature ranging from 50°C to 80°C, wherein the heated liquid comprises N-(n-butyl)thiophosphoric triamide (NBPT) ranging from 70% to 95% by weight of the solid coating composition and dimethyl sulfoxide (DMSO) ranging from 4% to 24% by weight of the coating; wherein the dry, flowable fertilizer composition comprises the solid coating composition homogeneously applied on a surface of the one or more particulate nitrogen sources and wherein the composition comprises a non-clumped one or more particulate sources (claims 1, 2, 3, 4, instant invention; claim 1, U.S. Patent No. ‘443). Each claims one or more solvents selected from aprotic solvents and protic solvents (claims 8, 9, instant application; claim 2, U.S. Patent No. ‘443). Each claims the one or more particulate nitrogen sources is selected from manure or dicyandiamide and wherein the composition weight percent comprises about 93.05-99.91% of the one or more particulate nitrogen sources (claims 1, 5, 6, instant application; claim 5, U.S. Patent No. ‘443). Each claims the solid fertilizer composition further comprises one or more members selected from the group consisting of surfactants, buffers…fragrance and flow modifiers (claims 7, 13, instant application; claim 3, U.S. Patent No. ‘443). Each claims the dry, flowable fertilizer composition comprises colorants to enhance visual conformation of evenness of coating of the one or more particulate nitrogen sources surfaces and depth of penetration into the one or more particulate nitrogen sources (claim 14, instant invention; claim 4, U.S. Patent No. ‘443). U.S. Patent No. ‘443 does not claim the aprotic and protic solvents as claimed in claims 8 and 9. It is for this reason McKnight ‘062 is added as a secondary reference. The teachings of McKnight ‘062 are taught herein above. U.S. Patent No. ‘443 claims the second solvent comprises one or more solvents selected from one or more aprotic solvents and one or more protic solvents. One of ordinary skill in the art would have been motivated to use the claimed aprotic and protic solvents because improved solvent formulations for the nitrification inhibitor dicyandiamide are taught by McKnight et al. ‘062. McKnight et al. ‘062 teach the formulations contain aprotic and protic solvents which are more environmentally friendly and are safe for workers to handle. McKnight et al. ‘062 teach the use of the same claimed aprotic and protic solvents that are currently claimed in mixture with the same aprotic solvent, DMSO taught by U.S. Patent No. ‘443 to provide environmentally friendly and safe formulations for workers to handle. Therefore, the use of the claimed aprotic and protic solvents would have been obvious to one of ordinary skill in the art. For these reasons, one of ordinary skill in the art would conclude that the invention defined is obvious over U.S. Patent No. ‘443.
Claims 1, 2, 3, 4, 7-11 and 13-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5, 6, 8, 11, 13, 18, 20 of U.S. Patent No. 12,497,344 (‘344) (formerly co-pending Application No. 17/678,427 (‘427)). Although the claims at issue are not identical, they are not patentably distinct from each other because each is drawn to a dry, flowable fertilizer composition, wherein the dry, flowable fertilizer comprises: a) a particulate nitrogen source, b) a coating composition comprising N-(n-butyl)thiophosphoric triamide (NBPT) and a non-aqueous organic solvent, wherein NBPT comprises 75% to 95% of the coating composition, wherein the dimethyl sulfoxide (DMSO) is the solvent, wherein the dry, flowable composition is homogeneously coating the flowable liquid composition on the surface of the particulate nitrogen source and wherein the composition comprises a non-clumped one or more particulate sources (claims 1, 2, 3, 4, instant invention; claim 1, U.S. Patent No. ‘344). Each claims one or more solvents selected from aprotic solvents and protic solvents (claims 8, 9, instant application; claim 10, U.S. Patent No. ‘344). Each claims the one or more particulate nitrogen sources is dicyandiamide (claim 1, instant application; claim 12, U.S. Patent No. ‘344). Each claims the solid fertilizer composition further comprises one or more members selected from the group consisting of surfactants, buffers…fragrance and flow modifiers (claims 7, 13, instant application; claim 3, U.S. Patent No. ‘344). Each claims the dry, flowable fertilizer composition comprises colorants to enhance visual conformation of evenness of coating of the one or more particulate nitrogen sources surfaces and depth of penetration into the one or more particulate nitrogen sources (claim 14, instant invention; claim 6, U.S. Patent No. ‘344). For these reasons, one of ordinary skill in the art would conclude that the invention defined is obvious over U.S. Patent No. 12,497,344 (‘344) (formerly co-pending Application No. 17/678,427 (‘427))
Response to Arguments
The examiner notes applicants request to hold the nonstatutory type double patenting rejections in abeyance. The nonstatutory obviousness-type double patenting rejections are maintained as indicated hereinabove.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached on 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDRIAE M HOLT/ Examiner, Art Unit 1614
/ALI SOROUSH/ Supervisory Patent Examiner, Art Unit 1614