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 4/23/2026:
Claims 1-11 and 13-22 are presently pending
Claims 15-22 are withdrawn
Claims 12 and 23-29 are cancelled
The objections to the specification are withdrawn in light of the amendments
The claim rejections under 35 U.S.C. 112(b) are withdrawn in light of amendments to the claims
All prior art grounds of rejection are maintained, with new support only as necessitated by amendment
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) 1-8, 10 and 13-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Solansky (U.S. Patent No. 5261939, hereinafter “Solansky”).
Regarding claim 1, Solansky teaches a process for inhibiting, at least in part, nitrification of ammonium-containing fertilizers (a1) and/or of ammonium-producing fertilizers (a2) (e.g., a nitrification-inhibiting agent [Abstract] for use in combination with fertilizers such as ammonium sulphate, ammonia, urea, etc. [Col. 2 lines 31-33 & 44-50] and a method for inhibiting nitrification of ammonium nitrogen using the agent [Claim 1]), which process comprises the steps of:
Applying to soil and/or to foliage a nitrification inhibitory amount of one or more compounds (b) that are selected from the group consisting of (b1) polysulfides and/or (b2) thiosulfates and/or (b3) hydrosulfides) (e.g., the agent can be applied either along with fertilizers or alone to soil [Col. 2 lines 31-33 & Col. 3 lines 15-17]; the agent comprises ammonium thiosulphate [Col. 1 lines 55-60 & Col. 2 lines 16-18] which Solansky teaches inhibits nitrification and thus necessarily must be applied in a nitrification inhibitory amount [Col. 1 lines 60-65]);
Wherein the one or more compounds (b) are applied simultaneously with, before or after the fertilizers (a) are applied to the soil and/or to the foliage such that the compounds (b) are in direct contact with the ammonium-containing fertilizers (a1) and/or the ammonium-producing fertilizers (a2) (e.g., the agent can be applied alone and in combination with the nitrogen-containing fertilizers [Col. 2 lines 31-33]; the agent is added to solid fertilizers and mixed with them, granulated, prilled, or compacted together with them, or added to liquid fertilizers in the form of a solution or suspension, which will necessarily result in direct contact as well as application at the same time [Col. 2 lines 56-69]);
Wherein compounds (b) are different from compounds (a) (here, ammonium thiosulphate is different from urea); and
Wherein the one or more nitrification inhibiting compounds (b) are applied in an amount such that the ratio (w/w) of “total protectable nitrogen” over “sulfur from compounds (b)” is at most about 8:1 and at least about 1.1:1; wherein “protectable nitrogen” is nitrogen that is not already in the nitrate form, and/or corresponding to a soil level of S that is at least about 50 ppm: Solansky discloses an example wherein the agent comprises 20 to 70 % by weight of dicyandiamide, 20 to 70% by weight of ammonium thiosulphate, and 10 to 60 % by weight of ammonium phosphate [Col. 2 lines 16-18]. Additionally, the fertilizer can be a variety of nitrogen-containing fertilizers, such as ammonium salts or urea [Col. 2 lines 44-51]. When used in combination with fertilizers, the agent is included in an amount of 0.1 to 30 % by weight relative to the fertilizer [Col. 2 lines 38-43]. These ranges would suggest to one of ordinary skill in the art any amount of the components within the disclosed ranges in combination with one of the disclosed fertilizers. These ranges necessarily result in a ratio of total protectable nitrogen over sulfur from compounds (b) which overlaps with the claimed range, creating a prima facie case of obviousness. See MPEP 2144.05.
For illustrative and calculation purposes only, note the following hypothetical example, implementing urea as the fertilizer, wherein the ratio N:S falls within the claimed range:
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Regarding claim 2, Solansky teaches the process wherein the soil health is maintained (e.g., the ingredients in the inhibition agent of Solansky are neither toxic nor present residue problems) [Col. 1 lines 37-45 & Col. 3 lines 4-10]. Solansky does not explicitly measure the claimed parameters such as total microbial biomass or amount of active urease enzyme or earthworms in the soil. However, Solansky specifically states that the disclosed method is free from toxicological or residue problems, [Col. 1 lines 50-55] with all components having low toxicity and leaving no dangerous residues in the soil [Col 3 lines 4-10]. Because Solansky’s inhibitory agent and associated method are nontoxic, they are regarded as necessarily not poisoning and killing earthworms or microbes in the soil. As such, it would appear that Solanksy’s method necessarily meets these limitations.
Regarding claim 3, Solansky teaches the process wherein the one or more nitrification inhibiting compounds (b) are applied in an amount such that:
the ratio of total protectable nitrogen over sulfur from compounds (b) is at most about 8:1 (Solansky teaches a range of the compounds (b) which overlaps with this ratio; see, e.g., the illustrative calculations in claim 1 above), and
corresponding to a soil level of S that is at least about 50 ppm (Solansky teaches the agent applied before, at the same time, or after fertilization using an application rate of 0.1 to 300 kg/ha [Col. 2 lines 34-37]; ammonium thiosulfate implemented by Solansky comprises 43% by weight S, and ammonium thiosulfate comprises up to 70% of the total agent disclosed by Solansky [Col. 2 lines 16-18]; Applicant’s specification states that applying 150 kg S from compounds (b) corresponds to a soil level of 120 ppm S from compounds (b) and applying 10 kg S from compounds (b) corresponds to a soil level of 80 ppm S from compounds (b) [Specification Page 15 lines 5-15]; and as such the amount of S applied from compounds (b) as taught by Solansky necessarily overlaps with ranges taught by Applicant to inherently result in an S ppm in soil overlapping with the claimed range).
Regarding claim 4, Solansky teaches the process wherein the nitrification rate is reduced by at least about 70% of more compared to a control without nitrification inhibitors (Solansky discloses several examples of mixtures which achieve at least about 70% inhibition as compared to the individual inhibitors alone, and thus necessarily these mixtures also achieve such inhibition as compared to without any inhibitor; see, e.g., the examples comprising ammonium thiosulfate (ATS) at [Col. 4 lines 40-49] demonstrating 65% inhibition, at [Col. 5 lines 1-15] demonstrating 77% inhibition, at [Col. 5 lines 30-43] demonstrating 66%, 75%, and 75% inhibition, and at [Col. 6 lines 5-15] demonstrating 75.1% and 76.6% inhibition; as such, one of ordinary skill in the art would readily appreciate that the agent of Solansky can and does inhibit at the requisite level using several different concentrations of ingredients).
Regarding claim 5, Solansky teaches the process wherein the ammonium-containing fertilizers (a1) and/or the ammonium-producing fertilizers (a2) are applied to the soil and/or foliage in solution with the one or more nitrification inhibiting compound(s) (b) (e.g., the agent can be added to liquid fertilizers in the form of solutions or suspensions, applied using conventional plant sprayers [Paragraph bridging Col. 2 and 3; suitable fertilizers are nitrogen-containing fertilizers such as ammonium salts, ammonium sulfate, ammonia, urea, or liquid manure [Col. 2 lines 44-51]).
Regarding claim 6, Solansky teaches the process wherein the ammonium-containing fertilizers (a1) and/or the ammonium-producing fertilizers (a2) are applied to the soil and/or foliage in the form of a homogeneous solid mixture with the one or more nitrification inhibiting compounds (b) (e.g., the agent is added to solid fertilizers and mixed with them, granulated, prilled, or compacted together with them, which will necessarily result in homogeneity) [Col. 2 lines 56-60].
Regarding claim 7, Solansky teaches the process wherein the ammonium-containing fertilizers (a1) and/or the ammonium-producing fertilizers (a2) and the nitrification inhibiting compounds (b) are applied to the soil and/or foliage in the form of a granule or prill containing the ammonium-containing fertilizers (a1) and/or the ammonium-producing fertilizers (a2) and the one or more nitrification inhibiting compounds (b) (e.g., the agent is added to solid fertilizers and mixed with them, granulated, prilled, or compacted together with them) [Col. 2 lines 56-60].
Regarding claim 8, Solansky teaches the process wherein the ammonium-producing fertilizers (a2) comprises urea (e.g., suitable fertilizers include urea) [Col. 2 lines 44-51] and the nitrification inhibiting compounds (b) are present in a coating around a urea granule or prill (e.g., the agent can be added to the solid fertilizer and mixed with it, which would appear to necessarily result in coating the solid fertilizer with the agent) [Col. 2 lines 56-60].
Regarding claim 10, Solansky teaches the process wherein the one or more nitrification inhibiting compound (b) is a thiosulfate salt (e.g., ammonium thiosulphate) [Col. 1 lines 55-60].
Regarding claim 13, Solansky teaches the process wherein the ratio of “Total protectable nitrogen” over “sulfur from compounds (b) is from 1.5:1 to about 6:1 (note the illustrative example provided in the rejection of claim 1 above which demonstrates that Solansky teaches a range of nitrogen:sulfur which overlaps with the claimed range).
Regarding claim 14, Solansky teaches the process wherein the fertilizer (a) is selected from the provided group (e.g., ammonium salts, ammonium nitrate, ammonium sulphate, ammonia, urea) [Col. 2 lines 44-51].
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Solansky as applied to claim 1 above, and further in view of Hojjatie (U.S. Patent Pub. No. 2006/0185411 A1, hereinafter “Hojjatie”).
Regarding claim 9, Solansky teaches the process wherein the on or more nitrification inhibiting compound (b) is a thiosulfate salt (e.g., ammonium thiosulphate) [Col. 1 lines 55-60] but does not specifically disclose the inclusion of a polysulfide salt. However, Hojjatie teaches in a similar nitrification-inhibiting composition containing thiosulfates and method for use with urea-based fertilizer [Hojjatie Abstract & Para. 0050] that it is standard to also include polysulfide salts such as calcium polysulfide and/or potassium polysulfide and blends thereof [Hojjatie Para. 0050]. These compounds provide the advantage of inhibiting the catalytic effect of urease on the hydrolysis of urea to ammonia and thus increase the nitrogen utilization rate of the fertilizer by reducing the volatility of ammonia and ammonium ions [Hojjatie Para. 0050]. The specific combination of these salts along with thiosulfates is particularly effective for this purpose [Hojjatie Para. 0050]. As such, in performing the process of Solansky implementing thiosulfates, one of ordinary skill in the art would look to Hojjatie and readily appreciate the advantages of further including a polysulfide salt (Note the interpretation set forth on Pages 3-4 of this Office Action). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in performing the process of Solansky to further include a polysulfide salt as taught by Hojjatie.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Solansky as applied to claim 1 above, and further in view of Young (Canadian Patent No. 1191708 A, hereinafter “Young”).
Regarding claim 11, Solansky teaches the process wherein the one or more nitrification inhibiting compound (b) is a thiosulfate salt (e.g., ammonium thiosulphate) [Col. 1 lines 55-60] but does not specifically disclose the inclusion of hydrogen sulfide salt. However, Young teaches in a similar nitrification inhibiting agent for use with fertilizers [Young Page 8 lines 10-24] that several types of sulfides, including specifically hydrogen sulfide, have a remarkable inhibitory effect on nitrification of ammonium in soils [Young Page 5 lines 18-29]. As such, in performing the process of Solansky comprising a sulfur salt-based nitrification inhibitor, one of ordinary skill in the art would look to Young and readily appreciate that hydrogen sulfide is a predictable substitute for the same purpose of inhibiting nitrification in the fertilizer. Substitution of one known element for another yields predictable results to one of ordinary skill in the art. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the hydrogen sulfide of Young for the thiosulfate in performing the process of Solansky.
Response to Arguments
Applicant's arguments filed 4/23/2026 have been fully considered but they are not persuasive.
Regarding claim 1, Applicant argues that Solansky does not teach the claimed nitrogen-to-sulfur ratio (Remarks Page 8). However, Solansky teaches a range of components which necessarily overlaps with the claimed range of ratios: 20 to 70 % by weight of dicyandiamide, 20 to 70% by weight of ammonium thiosulphate, and 10 to 60 % by weight of ammonium phosphate [Solansky Col. 2 lines 16-18]. The fertilizer can be urea [Col. 2 lines 44-51]. When used in combination with fertilizers, the agent is included in an amount of 0.1 to 30 % by weight relative to the fertilizer [Col. 2 lines 38-43]. These ranges would suggest to one of ordinary skill in the art any amount of the components within the disclosed ranges in combination with one of the disclosed fertilizers. These ranges necessarily result in a ratio of total protectable nitrogen over sulfur from compounds (b) which overlaps with the claimed range, creating a prima facie case of obviousness. See MPEP 2144.05. The example provided by the Office is clearly indicated as illustrative, only as proof that Solansky’s ranges meet the claimed ranges. While Solansky does not refer directly to the ratio between the nitrogen and sulfur, rationale different from Applicant’s is permissible. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006). Here, it is not necessary that the prior art suggest the ratio itself, when it suggests the same ranges of components necessarily resulting in that ratio, albeit for different reasons.
Further regarding claim 1, Applicant argues that Solansky focuses on DCD rather than ammonium thiosulfate as the primary nitrification inhibitor (Remarks Page 9). Assuming Applicant is correct in that Solansky requires DCD, claim 1 is drafted in such a way as to permit other inhibitors present in the method. Claim 1 does not preclude the addition of DCD. Relatedly, Applicant argues that Solansky does not teach or suggest that sulfur compounds alone can effectively inhibit nitrification. However, claim 1 does not require the sulfur compound to be alone.
Regarding claim 9, Applicant argues that Hojjatie is directed to urease inhibition, not nitrification inhibition, and as such one of ordinary skill in the art would not look to Hojjatie to make a combination (Remarks Page 9). However, Solansky discloses a urea-based fertilizer. Hojjatie clearly teaches advantages of including a urease inhibitor such as the polysulfide salt with a urea-based fertilizer: These compounds provide the advantage of inhibiting the catalytic effect of urease on the hydrolysis of urea to ammonia and thus increase the nitrogen utilization rate of the fertilizer by reducing the volatility of ammonia and ammonium ions [Hojjatie Para. 0050]. As such, a person of ordinary skill in the art would readily combine such an inhibitor with the nitrification-inhibiting composition of Solansky. Further, as discussed above, rationale different from Applicant’s is permissible. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006). Here, it is not necessary that the prior art Hojjatie suggest that the polysulfide salt is for nitrification inhibition, when it provides clear motivation for further including it in the composition of Solansky.
Regarding claim 11, Applicant argues that Young is directed to a different type of composition – specifically, fumigation and pesticidal activity rather than ammonium-containing fertilizers (Remarks Page 10). However, Young specifically discusses ammonium-containing fertilizers: “Crops have been found to recover only 30 to 70 percent of the total amount of expensive fertilizer nitrogen which is applied to the soil” [Young Page 4 lines 19-22], “most nitrogen fertilization is with ammonia, ammonium compounds other than nitrate, and urea materials” [Young, Para. Bridging pages 4-5]. Young then specifically describes various compositions as improving crop recovery of fertilizer nitrogen via nitrification inhibition, including hydrogen sulfide and other sulfur compounds and thiocarbonates and thiocarbonic salts [Young Page 5 lines 18-29 & Young Page 6 lines 1-13]. Young also discloses a liquid composition including hydrogen sulfide in equilibrium which releases fumigants [Young Abstract]; however, "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Here, the reference is relied upon for suggesting that hydrogen sulfide is another suitable option for nitrification inhibition.
For at least the foregoing reasons, Applicant’s arguments are not found persuasive and the challenged rejections are maintained.
Conclusion
THIS ACTION IS MADE FINAL. 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
/AMBER R ORLANDO/Supervisory Patent Examiner, Art Unit 1731
