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 .
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-11 and 13-14) in the reply filed on 9/16/2025 is acknowledged.
Claims 15-22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 9/16/2025.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 2 and 9-11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 2, the phrase "preferably" (line 1 of the claim) renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d). Here, the claim recites “preferably wherein . . .” followed by several criteria a), b), and/or c) describing levels of microbial biomass, urease enzyme and/or earthworms. As drafted, it is unclear whether one of these alternatives is required or merely a suggestion, as implied by the phrase “preferably.” For purposes of examination, the claim is construed according to its broadest reasonable interpretation, which here allows for the criteria a) b) and c) to merely be suggestions (i.e., they are not required by the claim). As such, any measure of soil health being maintained or not significantly influenced, regardless of how this is measured, is regarded as reading on these recitations.
Further regarding claim 2, the phrase “not significantly negatively influenced” in lines 1-2 of the claim is a relative phrase which renders the claim indefinite. The phrase “not significantly negatively influenced” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is noted that the Specification describes selected preferable examples of the meaning of “not significantly negatively influenced” such as the total microbial biomass being more than 70% of an untreated control plot (Specification Para. 0032), but these do not appear to be drafted in such a way as to limit Applicant to these exemplary measurement methods. Therefore, the scope of the claim is unascertainable to one of ordinary skill in the art. For purposes of examination, any change in soil health is regarded as being “not significant,” regardless of the measurement method implemented.
Regarding claims 9-11, the several recitations “wherein the nitrification inhibiting compound (b) is . . .” render the claims indefinite. The recitation is indefinite because, as drafted, it is unclear whether the claims intend to limit the respective nitrification inhibiting compounds (b) set forth in claim 1 to only one type of compound. Claim 1 sets forth “one or more compounds (b)” (lines 4-5 of claim 1). As such, the “or more” appears to imply that a mixture of the compounds (b) is acceptable. However, claims 9-11 refer to the compound (b) in the singular and states that it is a polysulfide salt (claim 9), a thiosulfate salt (claim 10), or a hydrogen sulfide salt (claim 11). As such, one of ordinary skill in the art could not reasonably apprise whether a process comprising several of the types of compounds would read on, for example, claim 9 describing the compound as being entirely a polysulfide salt. For purposes of examination, the claim is construed according to its broadest reasonable interpretation, which would appear to allow for a mixture of any of the types of compounds so long as the mixture comprises at least the claimed type of compound in claims 9, 10 or 11 respectively.
Regarding claim 10, the phrase "preferably " renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). Here, it is unclear whether the limitations “ammonium thiosulfate and/or potassium thiosulfate and/or calcium thiosulfate” are actually required by the claim or are merely exemplary. For purposes of examination, any thiosulfate salt is regarded as reading on these limitations.
Regarding claim 11, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). Here, it is unclear whether the limitation “NaHS” is actually required by the claim or are merely exemplary. For purposes of examination, any hydrogen sulfide salt is regarded as reading on this limitation.
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 or not significantly negatively influenced (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], which is here regarded as reading as soil health not being significantly negatively influenced).
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 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 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 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 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.
Conclusion
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/H.E.R./Examiner, Art Unit 1731
/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731