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/Restriction
Applicant's arguments with traversal of the restriction in the reply filed on 12/08/2025 ARE acknowledged. However, the arguments were previously considered and the requirement deemed proper and made FINAL in the Office Action (08/06/2025). After a final requirement for restriction, the applicant, in addition to making any reply due on the remainder of the action, may petition the Director to review the requirement. Petition may be deferred until after final action on or allowance of claims to the invention elected, but must be filed not later than appeal.
Claim Objections
Claim 1 is objected to because of the following informalities: the term “Sulphate of Potash” is followed by “SOP – K2SO4” in parenthesis. Sulphate of potash, abbreviated to SOP, is a synonym for potassium sulfate with the formula K2SO4. The inclusion of the three terms simultaneously is redundant. Appropriate correction is required.
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.
Claims 1 and 4-5 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.
In regard to claim 1 the limitation "having a particle size of less than 2 mm" in line 2 is unclear. It is not readily apparent if this particle size refers to the granule, the polyhalite, the sulphate of potash, or a combination of these elements. For the purposes of examination, this limitation is interpreted as “wherein the sulphate of potash has a particle size of less than 2 mm”.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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 fertilizer granules [para. 0041] comprising Polyhalite and Sulphate of Potash (SOP) (e.g. further 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] wherein the ratio of polyhalite to SOP is between 1:4 to 4:1 (e.g. 20 to 80% by weight polyhalite, 20 to 80% by weight salt B) [0045], wherein said granule comprises starch as a binder [0039], and wherein said granule comprises a granule strength of at least 0.5 Kg/granule (e.g. granules burst strength between 10 N and 400 N, which equates to 1-41 kgf) [0070]. KS-AG’s granules do not comprise any chloride-containing components other than the natural chloride impurities present in polyhalite. While KS-AG does not disclose a specific embodiment in which the starch is “activated starch”. KS-AG describes a method whereby polyhalite granules are formed from finely divided polyhalite mixed with pre-swollen starch)[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.
In regard to claim 4, KS-AG disclose the granule of claim 3, wherein binder is present in a concentration of 2% w/w [039].
In regard to claim 5, KS-AG disclose the granule of claim 1, comprising 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).
Response to Arguments
Applicant argues (pg. 5, section 1.) 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. 6, section 2.) the KS-AG reference prefers a calcined polyhalite and the claims require an uncalcined polyhalite. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., uncalcined polyhalite) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Furthermore, 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.
Applicant argues (pg. 6, section 3., pg. 7, section 1.) KS-AG does not disclose activated starch. 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.
Applicant argues (pg. 6, section 4.) KS-AG does not disclose a granule strength greater than 0.5 kg/granule. This argument relies on KS-AG’s teaching of burst strength which Applicant claims is not an equivalent strength metric. In response to this argument, KS-AG is cited as teaching granules having a burst strength between 10 N and 400 N which equates to 1-41 kgf [0070] and is within the claimed range.
Applicant argues (pg. 7, section 5.) 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 not more than 2 mm) [0050].
Applicant argues (pg. 8, section 2.) 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 [039] which is within the claimed range.
Applicant argues (pg. 8, section 3) 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). There is no showing or suggestion of the criticality of the claimed range which lies inside the range disclosed by the prior art.
For these reasons Applicant's arguments filed 12/08/2025 have been fully considered but they are not persuasive.
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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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 December 17, 2025