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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 04/17/2026 has been entered.
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114.
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 1 and 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over KS-AG (DE 102017010086-A1, cited in IDS 02/04/2025).
In regard to claim 1, KS-AG discloses chloride-free (e.g. KS-AG’s composition is not described as comprising any chloride-containing components other than the natural chloride impurities present in polyhalite) fertilizer granules [para. 0042] comprising:
polyhalite (e.g. polyhalite, not described as calcined polyhalite);
Sulphate of Potash (e.g. salt B) [0044], having a particle size of less than 2 mm (e.g. the salt grains in the salt mixture have a particle size of not more than 2 mm) [0050]; and
starch as a binder [0039], present in a concentration of 1-2% w/w (e.g. the proportion of organic binders will typically not exceed 2% by weight) [0039]. While KS-AG does not disclose a specific embodiment in which the starch is “activated starch”. KS-AG describes a similar method whereby polyhalite granules are mixed with a pre-swollen starch binder [0007]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose a binder referenced by KS-AG for use in polyhalite granulation. One of ordinary skill in the art would have been motivated to substitute the starch binder component with a pre-swollen starch (e.g. activated starch) to yield predictable results,
wherein the ratio of the uncalcined polyhalite (e.g. polyhalite) to the sulphate of potash is from 1:4 to 4:1 (e.g. 20 to 80% by weight polyhalite, 20 to 80% by weight salt B) [0045], and
the granule has a crushing strength of at least 0.5 Kg/granule (e.g. granules crushing strength between 10 N and 400 N, which equates to 1-41 kgf) [0070].
In regard to claim 4, KS-AG disclose the granule of claim 1, wherein binder is present in the concentration of 2% w/w (e.g. the proportion of organic binders will typically not exceed 2% by weight) [0039].
In regard to claim 5, KS-AG disclose the granule of claim 1, wherein the ratio of uncalcined polyhalite to the sulphate of potash is 55:45 (e.g. 20 to 80% by weight polyhalite, 20 to 80% by weight salt B) [0045]. 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). Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Response to Arguments
Applicant’s amendments (04/17/2026) overcome the objection to claim 1 and the rejection of claims 1 and 4-5 under 35 U.S.C. 112(b) set forth in the prior Office Action (12/18/2025).
Applicant argues (pg. 4, last para.; pg. 12, section 7) the KS-AG reference does not teach a granulated fertilizer granule and instead is directed to a granule formed by roller compaction. This argument is not persuasive. Roller compaction is a continuous, directly compressible, dry granulation process. Furthermore, KS-AG describes their composition as a granule [abstract, claims] and therefore KS-AG discloses a product that is a granular fertilizer.
Applicant argues (pg. 5, section 1) the KS-AG reference requires and prefers a calcined polyhalite and the claims require an uncalcined polyhalite. This argument is not persuasive. KS-AG describes both polyhalite and calcined polyhalite as suitable materials for the granular composition (e.g. In particular, the salt mixture used in press agglomeration comprises not only polyhalite but also calcined polyhalite. Here, the calcined polyhalite may be sole salt B. It is likewise preferred if the salt B comprises, in addition to the calcined polyhalite, a further salt B selected from magnesium sulfate, its hydrates and potassium sulfate.) [0043]. The calcined polyhalite is described in terms of salt B and not in place of raw material polyhalite. KS-AG clearly differentiates between polyhalite (considered uncalcined polyhalite) as one component separate from salt B which is described as chosen from Sulphate of Potash or calcined polyhalite (e.g. salt B) [0044]:
In particular, the salt mixture consists of at least 80 wt.%, and preferably at least 90 wt.% or at least 95 wt.%, of mixtures of polyhalite with at least one further salt B, selected from potassium sulfate, magnesium sulfate and its hydrates—such as the monohydrate (kieserite) or the heptahydrate (Epsom salt or epsomite)—langbeinite (i.e., K₂Mg₂[SO₄]₃), calcined polyhalite, and mixtures thereof.
Applicant argues (pg. 6, section 2) KS-AG does not teach or suggest SOP having particle size of less than 2 mm. This argument is not persuasive. The reference teaches the salt grains in the salt mixture have a particle size of at most 2 mm) [0050]:
It is advantageous if the constituents of the salt mixture exhibit a particle size distribution in which at least 80 wt.%, in particular at least 90 wt.%, of the salt grains in the salt mixture have a particle size of at most 2 mm—specifically at most 1.5 mm, and more specifically at most 1.2 mm—and preferably have particle sizes in the range of 0.01 to 2 mm (in particular in the range of 0.05 to 1.5 mm, and specifically in the range of 0.1 to 1.2 mm), as determined by sieve analysis in accordance with DIN 66165:2016-08.
Applicant argues (pg. 6, section 3, pgs. 14-15) the range(s) recited by KS-AG do not overlap with the claimed range, especially the specific ration of 55:45 in claim 5. KS-AG disclose a ratio of polyhalite to SOP of between 1:4 to 4:1 (e.g. 20 to 80% by weight polyhalite, 20 to 80% by weight salt B) [0045]. 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). Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Applicant’s showing of granule crushing strength data across multiple ratios demonstrates there is no criticality of the claimed range which lies inside the range disclosed by the prior art because the granule crushing strength at ratios ranging from 70:30 to 30:70 exhibits a crushing strength of at least 0.5 kg/granule as required by the claim(s).
Applicant argues (pgs. 7-9, section 4; para. bridging pgs. 13-14) KS-AG does not teach or suggest activated starch as a binder present in a concentration of 1-2% w/w. In response to this argument, KS-AG’s granule comprises starch as a binder [0039]. While KS-AG does not disclose an embodiment in which the starch is particularly “activated starch”. KS-AG describes a method whereby polyhalite granules are formed from finely divided polyhalite mixed with pre-swollen starch) [0007]. Utilizing activated (e.g. pre-swollen) starch in place of the generic starch binder described by KS-AG is merely simple substitution of one known element for another to obtain predictable results and is obvious in view of the disclosure of the prior art. KS-AG describe the proportion of organic binders will typically not exceed 2% by weight [0039]. Applicant’s results related to an activated starch binder compared to other binders (e.g. meta kaolin, potassium silicate, etc.) is not considered a comparison of the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. [MPEP 716.02(e)].
Applicant argues (pg. 10, section 5) KS-AG does not disclose a granule strength greater than 0.5 kg/granule because KS-AG in paragraph [0070] discloses burst strength which is a different mechanical property. This argument is not persuasive. The translation of the term “Bruchfestigkeit” in the KS-AG German-language document is most closely related to crush strength. The parameter is determined by the force required to crush the granule between plunger and plate [0070]. KS-AG is cited as teaching granules capable of withstanding a mechanical stress between 10 N and 400 N which equates to 1-41 kgf [0070] and is within the claimed range.
Applicant argues (pgs. 11-12) KS-AG does not disclose chloride-free granules. Applicant’s arguments that KS-AG’s fertilizer granule inherently contains chloride because it does not explicitly describe the composition as chloride-free are not persuasive. KS-AG’s composition is not described as comprising any chloride-containing components other than the natural chloride impurities present in polyhalite.
Applicant argues (pg. 14) the binder levels recited in the prior art do not render the claim obvious because uncalcined polyhalite cannot form strong granules and a person of skill in the art would not expect that 2% activated starch would work in a granulation system. In response to this argument KS-AG is cited as teaching a starch binder present in a concentration of 2% w/w [0039] which is within the claimed range. While KS-AG describes binder concentrations less than 1%, “disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments”. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
For these reasons Applicant's arguments filed 04/17/2026 have been fully considered but they are not persuasive.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 April 28, 2026
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