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 .
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 26-31, 40 and 45-47 are rejected under 35 U.S.C. 103 as being unpatentable over Bailey (US Patent No. 2,138,827 – cited in PTO-892 03/19/2025).
In regard to claim 26 and 46-47, Bailey teaches a fertiliser product (e.g. a material to be used commercially as a fertiliser) [clm. 3] in the form of a pellet, granule or prill (e.g. polyhalite in a granular condition) [col. 2, lines 50-51], the fertiliser product comprising:
a first fertiliser composition, wherein the first fertiliser composition is polyhalite (e.g. polyhalite, a natural mineral substance with the composition expressed by the chemical formula 2CaSO4, MgSO4, K2SO4, 2H2O) [col. 1, lines 11-14]; and
a second fertiliser composition, the second fertiliser composition being a nitrogen-providing fertiliser composition, and the first fertiliser composition being incorporated into the second fertiliser composition (e.g. polyhalite granules are coated with molten sodium nitrate) [col. 2, lines 5-7].
The Bailey reference does not explicitly teach 20-40% by weight of the first fertiliser composition and 60-80% by weight of the second fertiliser composition or the amounts of claims 46-47. Bailey describes the amount of sodium nitrate (e.g. second fertilizer) used is just sufficient to thoroughly coat the grains of polyhalite (e.g. first fertilizer) [pg. 2, lines 40-45]. Put another way, Bailey teaches the ratio of first and second fertilizer to be an art recognized result effective variable depending on the surface area of the polyhalite grains. It would have been obvious to one having ordinary skill in the art at the time the invention was made to discover the optimum values of first and second fertilizer relative to each other by routine experimentation. ‘Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’” Genentech (Hospira) (Fed. Cir. 01/10/20) (2-1) “Discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” In re Boesch (CCPA 07/03/80). “It has long been established law that ‘where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ Moderna (Fed. Cir. 12/01/21). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize, for example, a ratio of 40:60 or 30:70 of the first and second fertilizer absent teaching otherwise. One of ordinary skill in the art would have been motivated to determine amounts that satisfies the prior art’s functional goal of sufficiently coating [pg. 2, lines 40-45] while avoiding amounts of sodium nitrate (e.g. second fertilizer) that are too high to avoid adherence to the walls of the revolving furnace [pg. 2, lines 46-50].
In regard to claims 27-28, Bailey teaches the fertiliser product as claimed in claim 26, the fertiliser product comprising:
a first region, wherein the first region is in the form of a granule, comprising the first fertiliser composition (e.g. polyhalite in a granular condition) [col. 2, lines 50-51]; and
a second region adhered to the exterior of the first region, the second region comprising the second fertiliser composition (e.g. polyhalite granules are coated with molten sodium nitrate) [col. 2, lines 5-7].
In regard to claims 29-30, Bailey teaches the fertiliser product as claimed in claim 27, wherein the second region contacts the first region over substantially the whole of its interface to the first region and substantially surrounds the first region (e.g. the sodium nitrate thoroughly coat the grains of polyhalite) [col. 4, lines 50-55].
In regard to claim 31, Bailey teaches the fertiliser product as claimed in claim 27, wherein the first region is the only region of the product that comprises the first fertiliser composition (e.g. polyhalite is in a granular condition) [col. 2, lines 50-51].
In regard to claim 40, Bailey teaches the fertiliser product as claimed in claim 26, wherein the first fertiliser composition is a chipped mineral (e.g. mineral polyhalite into particles of such a size as to permit them to pass through a screen of from 10 to 20 mesh to the inch [clm. 3].
In regard to claim 45, Bailey teaches a bulk fertiliser product comprising a plurality of the fertiliser products as claimed in claim 26 (e.g. polyhalite granules are coated with molten sodium nitrate) [col. 2, lines 5-7].
Claims 26-27, 29-30, 32-36, 39 and 46-47 are rejected under 35 U.S.C. 103 as being unpatentable over Srini (GB 1,226,646 – cited in IDS 07/25/2022) in view of Farnworth et al. (US Patent Publication No. 2017/0129822 A1).
In regard to claims 26 and 46-47, Srini teaches a fertiliser product [pg. 1, line 12] in the form of a pellet, granule or prill (e.g. prill) [pg. 1, line 55], the fertiliser product comprising:
7 to 50 weight percent of a first fertiliser composition comprising potassium sulphate and/or magnesium sulphate [pg. 1, lines 57-58]; and
50-93 weight percent of a second fertiliser composition (e.g. an ammonium nitrate prill containing 7 to 50 percent first fertilizer), the second fertiliser composition being a nitrogen-providing fertiliser composition (e.g. ammonium nitrate) [pg. 1, line 55], and the first fertiliser composition being incorporated into the second fertiliser composition (e.g. ammonium nitrate-containing prill containing potassium magnesium sulfate) [pg. 1, lines 54-68];
wherein the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Srini discloses a first fertiliser composition comprising potassium sulphate and/or magnesium sulphate [pg. 1, lines 57-58] such as langbeinite K2Mg2(SO4)3) [pg. 1, lines 59-60] but does not explicitly disclose wherein the first fertiliser composition is polyhalite. Farnsworth et al. is directed to compositions for use as a fertiliser [0001] containing the evaporite mineral polyhalite which is a sulphate of potassium, calcium and magnesium [0002]. Farnsworth describes their process as useful for treatment of evaporite minerals other than polyhalite which include langbeinite [0069]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to perform simple substation of the potassium and magnesium sulfate-based evaporite mineral disclosed by Srini (e.g. langbeinite) for the potassium and magnesium sulfate-based evaporite mineral described by Farnworth (e.g. langbeinite). One of ordinary skill in the art would have been motivated to perform simple substitution of one known element for another to obtain predictable results and to further supply the nutrient calcium [Farnworth, 0003] in the fertiliser of the prior art.
In regard to claims 27, Srini teaches the fertiliser product as claimed in claim 26, the fertiliser product comprising:
a first region comprising the first fertiliser composition (e.g. langbeinite) [col. 2, lines 57-58]; and
a second region adhered to the exterior of the first region, the second region comprising the second fertiliser composition (e.g. ammonium nitrate and langbeinite solids are physically mixed as a melt mixture, solidified, and co-prilled) [pg. 2, Example 1].
In regard to claims 29-30 and 36, Srini teaches the fertiliser product as claimed in claims 26 and 27, wherein the second region contacts the first region over substantially the whole of its interface to the first region and substantially surrounds the first region (e.g. the langbeinite and sodium nitrate are melt mixed) [pg. 2, Example 1] and wherein one of skill would understand the claimed structure is present in Srini’s composition because the prior art materials are not physically mixed [pg. 1, lines 83-85] and is instead are homogeneous blend of the first and second fertiliser compositions (e.g. melt mixed).
In regard to claim 32, Srini teaches the fertiliser product as claimed in claim 26, the fertiliser product comprising a plurality of first regions comprising the first fertiliser composition, the first regions being dispersed throughout the second fertiliser composition, wherein the (e.g. melt mixed 20 percent by weight of langbeinite and about 80 percent by weight of ammonium nitrate) [pg. 3, example 1].
In regard to claims 33-35, Srini teaches the fertiliser product as claimed in claim 32, wherein the plurality of first regions are each in the form of granules of the first fertiliser composition, wherein the second region contacts the plurality of first regions over substantially the whole of the second region's interfaces with the plurality of first regions, wherein the second region contacts the plurality of first regions over substantially the whole of the second region's interfaces with the plurality of first regions (e.g. physical mixture of solids; solidified, particulate, co-prilled product) [pg. 3, example 1].
In regard to claim 39, Srini teaches the fertiliser product as claimed in claim 26, wherein the first fertiliser composition is a mineral powder (e.g. langbeinite fines) [pg. 2, line 32].
Claims 26 and 44 are rejected under 35 U.S.C. 103 as being unpatentable over Meakin et al. (GB 2,544,340 A).
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In regard to claims 26 and 44, Meakin et al. disclose a fertilizer product in the form of a pellet, granule or prill (e.g. composite pellet 1 of the type shown in figure 1) [pg. 6, 2nd para], the fertilizer product comprising:
a first fertiliser composition (e.g. region 3 acting as a fertilizer) [pg. 6, section b], wherein the first fertiliser composition is polyhalite (e.g. layer 3 comprises polyhalite) [pg. 7, 5th para.]; and
a second fertiliser composition, the second fertiliser composition being a nitrogen-providing fertiliser composition (e.g. region 2 acting as a nitrogen fertiloizer) [pg. 6, section a], wherein the second fertilizer composition is urea (pellet comprise a core of urea) [pg. 6, last para.] and the first fertiliser composition being incorporated into the second fertiliser composition (e.g. the polyhalite mixture could be applied to a pan pelletiser together with the urea pellets) [pg. 14, 2nd para.]
The Meakin reference does not explicitly teach 20-40% by weight of the first fertiliser composition and 60-80% by weight of the second fertiliser composition. Meakin describes wherein the volume of the outer layer (e.g. first fertilizer composition) may be between 50% and 100% or alternatively between 75% and 150% or alternatively between 100% and 200% of the volume of the inner region (e.g. second fertilizer composition) [pg. 8, 2nd para]. The size of the pellet and the relative sizes of the core 2 and the outer layer 3 can be selected for best performance in the environmental conditions and on the crop for which the fertiliser is intended [pg. 8, 3rd para.]. Put another way, Meakin teaches the ratio of first and second fertilizer to be an art recognized result effective variable depending on the intended use of the composite product. It would have been obvious to one having ordinary skill in the art at the time the invention was made to discover the optimum values of first and second fertilizer relative to each other by routine experimentation. ‘Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’” Genentech (Hospira) (Fed. Cir. 01/10/20) (2-1) “Discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” In re Boesch (CCPA 07/03/80). “It has long been established law that ‘where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ Moderna (Fed. Cir. 12/01/21). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize, for example, a ratio of 40:60 of the first and second fertilizer absent teaching otherwise. One of ordinary skill in the art would have been motivated to determine amounts that satisfies the prior art’s functional goal of sufficiently coating [pg. 7, 6th para.] while optimizing for best performance in the environmental conditions and on the crop for which the fertiliser is intended.
Response to Arguments
Applicant's arguments filed 01/30/2026 have been fully considered but they are not persuasive.
The declaration under 37 CFR 1.132 filed 01/30/2026 is insufficient to overcome the rejection of the claims based upon the Bailey and/or Srini references as set forth in the last Office action because:
The results comparing a control fertilizer to a fertilizer product comprising the control fertilizer and polyhalite amount to an affirmation that the claimed subject matter functions as it was intended to function. This is not relevant to the issue of nonobviousness of the claimed subject matter and provides no objective evidence thereof. See MPEP § 716. Evidence of unexpected results is frequently in the form of a direct comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims. The declaration results do not compare the claimed invention with the closest subject matter that exists in the prior art. See: MPEP §716.02(e). The closet prior art of record discloses a combination fertilizer product containing both a first mineral/polyhalite component and a second nitrogen-containing component.
In regard to the Baily prior art, Applicant argues (pgs. 5-7) Bailey does not disclose the weight percentages of the first and second fertilizer compositions. In response to this argument, the rejection in view of Baily presented above demonstrates these values to be result-effective variables. The presence of a known result-effective variable would be one, but not the only, motivation for a person of ordinary skill in the art to experiment to reach another workable product or process. This is sufficient to support an obviousness rejection, particularly when there is no showing of critically of the claimed range.
Applicant argues (pgs. 7-8) Srini discloses ranges that are broader than the claimed ranges. In response to this argument, the arguments and results do not demonstrate the criticality of the claimed ranges. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) [See MPEP 2144.05]
Applicant’s arguments with respect to the rejection(s) of the claims based on the teachings of the Jin reference have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 February 19, 2026