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 7/10/2025:
Claims 1, 3-4, 6-11, 13, 15-16, 18, 20-21, 23, 27, 29, 31-33, and 113 are presently pending
Claim 33 is withdrawn
Claims 2, 5, 12, 14, 17, 19, 22, 24-26, 28, 30, and 34-111 are cancelled
All prior art grounds of rejection are maintained, with new support 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, 3, 6-11, 13, 15-16, 18, 20-21, 27, 31-32 and 113 is/are rejected under 35 U.S.C. 103 as being unpatentable over Clark (U.S. Patent Pub. No. 2018/0319715 A1, hereinafter “Clark”) in view of Lewis (U.S. Patent Pub. No. 2022/0380272 A1, hereinafter “Lewis”), with evidence from “Monoammonium Phosphate (MAP)”, Mosaic Crop Nutrition, cropnutrition.com, retrieved 10/8/2025 (hereinafter “Mosaic Crop Nutrition”) as to claims 15 and 20.
Regarding claim 1, Clark teaches a granular fertilizer (e.g., a homogeneous fertilizer granule) [Clark Abstract] comprising:
Particles of struvite, the struvite being a source of phosphorus (e.g., the granule comprises struvite slurry or fines in an amount between 1 to 99% struvite by weight; struvite is necessarily a source of phosphorus) [Clark Abstract & Para. 0050]; and
Other particulate nutrients such as sulfur bound together homogeneously into the granules [Clark Para. 0017 & Para. 0025 & Claim 10].
Clark does not explicitly state that the sulfur source is particles of polyhalite. However, Lewis teaches that polyhalite is a standard sulfur source in the fertilizer art [Lewis Para. 0010] and is used in granules in mixture with other nutrient sources [Lewis Para. 0013] in the form of particles (e.g., powder having a diameter in the range from 1 to 400 microns) [Lewis Para. 0049] in an amount comprising more than 20% by weight of the total fertilizer [Lewis Para. 0036-37]. Further, polyhalite is a particularly advantageous form of sulfur because it provides sulfur in the form immediately available for plant uptake and metabolism [Lewis Para. 0036]. Additionally, polyhalite can increase crush strength and decrease fertilizer dusting [Lewis Para. 0036]. As such, in looking for a suitable sulfur source to combine with the struvite fertilizer granules of Clark, one of ordinary skill in the art would look to Lewis and readily appreciate that polyhalite is a standard and even advantageous option. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention when making the struvite fertilizer granules of Clark to include the polyhalite of Lewis.
Applicant’s specification discloses that polyhalite is composed of approximately 18.8-19.2% sulfur [Specification Para. 0028] and struvite is composed of approximately 28-29% phosphorus pentoxide [Specification Para. 0027]. As such, the combination of Clark and Lewis containing 1-99% struvite and greater than 20% polyhalite necessarily contains sulfur and phosphate expressed as phosphorus pentoxide in amounts overlapping with the claimed range of ratios of 2 to 25% sulfur:phosphate. Note that similar or overlapping ranges create a prima facie case of obviousness. See MPEP 2144.05.
Regarding claim 3, Clark as modified by Lewis teaches the granular fertilizer wherein the particles of struvite and the particles of polyhalite each have sizes of about SGN 10 or less (e.g., the particles of struvite do not exceed 0.1 mm or 10 SGN [Clark Para. 0053] and the particles of polyhalite are in the range from 1 to 400 microns [Lewis Para. 0049]).
Regarding claim 6, Clark as modified by Lewis teaches the granular fertilizer wherein the granules further comprise particles of a water-soluble phosphorus containing material (e.g., the granules further contain small particles of a fast release source of phosphorus [Clark Abstract & Para. 0017]; the fast release source is water soluble [Clark Para. 0018-0019]).
Regarding claim 7, Clark as modified by Lewis teaches the granular fertilizer wherein the water-soluble phosphorus containing material comprises one or more of phosphoric acid, single super phosphate, double super phosphate, triple super phosphate, monoammonium phosphate, diammonium phosphate, and dicalcium phosphate (the water-soluble phosphorus material comprises single super phosphate, triple superphosphate, monoammonium phosphate and combinations thereof) [Clark Para. 0019].
Regarding claim 8, Clark as modified by Lewis teaches the granular fertilizer wherein the water-soluble phosphorus containing material is intermixed with the particles of struvite to form phosphorus-containing granules that are intermixed with the particles of polyhalite in the granules (e.g., the struvite and water-soluble/fast-release phosphorus particles are homogeneously distributed within the granules [Clark Para. 0025]; other plant nutrient sources (i.e., here, the polyhalite sulfur source of Lewis) are added to yield a homogeneous fertilizer particle [Clark Para. 0027]).
Regarding claim 9, Clark as modified by Lewis teaches the granular fertilizer having a struvite content in the range from about 65% to about 99% by weight (e.g., 1 to 99% struvite by weight) [Clark Abstract & Para. 0050] and a polyhalite content in the range from about 35% to about 1% by weight (e.g., greater than 20% polyhalite) [Lewis Para. 0036-37].
Regarding claim 10, Clark as modified by Lewis teaches the granular fertilizer having a struvite content in the range from about 73% to about 97% by weight (e.g., 1 to 99% struvite by weight) [Clark Abstract & Para. 0050] and a polyhalite content in the range from about 27% to about 3% by weight (e.g., greater than 20% polyhalite) [Lewis Para. 0036-37].
Regarding claim 11, Clark as modified by Lewis teaches the granular fertilizer having a struvite content in the range from about 15% to about 35% by weight (e.g., 1 to 99% struvite by weight) [Clark Abstract & Para. 0050] and a water-soluble phosphorus containing material content in the range from about 30% to about 50% by weight (e.g., the relative amounts of struvite and water-soluble phosphorus-containing material can vary widely; in some embodiments the water-soluble phosphorus containing material is in the range of about 95% to 50% by weight) [Clark Para. 0050].
Regarding claim 13, Clark as modified by Lewis teaches the granular fertilizer having a polyhalite content in the range of from about 20% to about 50% by weight (e.g., greater than 20% polyhalite) [Lewis Para. 0036-37].
Regarding claim 15, Clark as modified by Lewis teaches the granular fertilizer wherein the granules comprise phosphorus pentoxide (e.g., struvite, which contains phosphorus pentoxide, and, for example, mono-ammonium phosphate as the water-soluble phosphate source, also known as MAP, which contains phosphorus pentoxide) [Clark Para. 0050] and about 15 to 35% by weight of the phosphorus pentoxide contained in the granules is sourced from struvite and about 65% to 85% by weight of the phosphorus pentoxide contained in the granules is sourced from the water-soluble phosphorus containing material (e.g., the relative amounts of struvite and water-soluble phosphorus-containing material can very widely, such as 5-50% struvite and 95-50% phosphorus-containing material such as MAP [Clark Para. 0050]; struvite is composed of approximately 28-29% phosphorus pentoxide [Specification Para. 0027] and MAP is composed of approximately 48-61% phosphorus pentoxide [Evidence from Mosaic Crop Nutrition, Page 1, “Chemical properties”]; as such, the possible relative amounts of phosphorus pentoxide sourced from the struvite and the MAP necessarily overlap with the claimed range).
Regarding claim 16, Clark as modified by Lewis teaches the granular fertilizer wherein the fertilizer has a content of the phosphorus-containing granules in the range of from about 55% to about 99% by weight (e.g., the fertilizer of Clark appears to entirely comprise the phosphorus-containing granules; i.e., the granules make up 100% by weight of the fertilizer, here regarded as reading on “about 99%”), and has a polyhalite content in the range of from about 1% to about 45% by weight (e.g., greater than 20% polyhalite) [Lewis Para. 0036-37].
Regarding claim 18, Clark as modified by Lewis teaches the granular fertilizer wherein the phosphorus-containing granules comprise struvite and the water-soluble phosphorus containing material [Clark Abstract & Para. 0018-0019 & 0050], and wherein the phosphorus-containing granules have a struvite content in the range of from about 15% to about 35% by weight (e.g., 1 to 99% struvite by weight) [Clark Abstract & Para. 0050].
Regarding claim 20, Clark as modified by Lewis teaches the granular fertilizer wherein the phosphorus-containing granules contain phosphorus pentoxide (e.g., struvite, which contains phosphorus pentoxide, and, for example, mono-ammonium phosphate as the water-soluble phosphate source, also known as MAP, which contains phosphorus pentoxide) [Clark Para. 0050] and about 15 to 35% of the phosphorus pentoxide contained in the phosphorus-containing granules is sourced from struvite and about 65% to 85% by weight of the phosphorus pentoxide contained in the granules is sourced from the water-soluble phosphorus containing material (e.g., the relative amounts of struvite and water-soluble phosphorus-containing material can vary widely, such as 5-50% struvite and 95-50% phosphorus-containing material such as MAP [Clark Para. 0050]; struvite is composed of approximately 28-29% phosphorus pentoxide [Specification Para. 0027] and MAP is composed of approximately 48-61% phosphorus pentoxide [Evidence from Mosaic Crop Nutrition, Page 1, “Chemical properties”]; as such, the possible relative amounts of phosphorus pentoxide sourced from the struvite and the MAP necessarily overlap with the claimed range).
Regarding claim 21, Clark as modified by Lewis teaches the granular fertilizer further comprising a binder [Clark Abstract] such as monoammonium phosphate, calcium lignosulphonates, starch, or molasses [Clark Para. 0022].
Regarding claim 27, Clark as modified by Lewis teaches the granular fertilizer wherein the crush strength of the granules is greater than about 3 lbs (e.g., the granules have a hardness or crush strength of about 4 lbs or greater) [Clark Para. 0055].
Regarding claim 31, Clark as modified by Lewis teaches the granular fertilizer wherein the granules consist essentially of struvite and polyhalite: Clark as modified by Lewis comprises at least struvite, polyhalite, and a fast-release source of phosphorus (e.g., MAP or DAP) [Clark Abstract & Lewis Para. 0036-37]. The transitional phrase "consisting essentially of" limits the scope of a claim to the specified materials or steps "and those that do not materially affect the basic and novel characteristic(s)" of the claimed invention. In re Herz, 537 F.2d 549, 551-52, 190 USPQ 461, 463 (CCPA 1976). For the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consisting essentially of" will be construed as equivalent to "comprising." See, e.g., PPG, 156 F.3d at 1355, 48 USPQ2d at 1355. Here, Applicant’s specification is open-ended and allows for a slow-release source of phosphorus (struvite) and a slow-release source of sulfur (polyhalite), as well as a fast-release source of phosphorus (e.g., MAP or DAP) [Specification Para. 0011]. Further, Applicant’s specification allows for other ingredients in the fertilizer such as a binder [Specification Para. 0014]. Applicant’s specification does recite that “in some embodiments, the fertilizer composition consists essentially of struvite and polyhalite (i.e., the composition does not include other materials that significantly affect its performance as a fertilizer). In these embodiments, struvite and polyhalite supply all of the nutrients that the fertilizer releases for plant growth (i.e., additional sources of nutrients or micronutrients are not included in the fertilizer composition)” [Specification Para. 0036]. However, this would not appear to clarify the basic and novel characteristics of the fertilizer composition. The inclusion of the fast-release source of phosphorus such as MAP in amounts as low as 1% (because the struvite content is 1-99% [Clark Para. 0050]) taught by the base reference Clark would not appear to affect the basic and novel characteristics of the claimed invention. Therefore, Clark as modified by Lewis is regarded as reading on this limitation.
Regarding claim 32, Clark as modified by Lewis teaches the granular fertilizer wherein the granules consist essentially of struvite, the water-soluble phosphate-containing material [Clark Abstract], and polyhalite [Lewis Para. 0036-37]. The transitional phrase "consisting essentially of" limits the scope of a claim to the specified materials or steps "and those that do not materially affect the basic and novel characteristic(s)" of the claimed invention. In re Herz, 537 F.2d 549, 551-52, 190 USPQ 461, 463 (CCPA 1976). For the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consisting essentially of" will be construed as equivalent to "comprising." See, e.g., PPG, 156 F.3d at 1355, 48 USPQ2d at 1355. Here, the specification states that “the fertilizer composition consists essentially of struvite, a fast-release source of phosphorus, and polyhalite,” [Specification Para. 0037] but does not appear to additionally clarify the basic and novel characteristics of the claimed invention. Clark as modified by Lewis appears to each a granule comprising at least struvite, the water-soluble phosphate-containing material, and polyhalite, with no other ingredients necessarily added. As such, Clark as modified by Lewis is regarded as reading on this limitation.
Regarding claim 113, Clark as modified by Lewis teaches the granular fertilizer wherein the phosphorus-containing granules have a water-soluble phosphorus containing material content in the range of from about 30% to about 50% by weight (e.g., 95-50% phosphorus-containing material such as MAP [Clark Para. 0050]).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Clark and Lewis as applied to claim 1 above, and further in view of Abu Rabeah (U.S. Patent Pub. No. 2022/0162133 A1, hereinafter “Abu Rabeah”).
Regarding claim 4, Clark as modified by Lewis teaches the granular fertilizer comprising polyhalite and struvite; however, Lewis teaches including the polyhalite in an amount greater than 20% [Lewis Para. 0036-37] which results in a ratio of available sulfur to available phosphate expressed as phosphorus pentoxide outside the claimed range. However, Abu Rabeah also teaches a multi-nutrient polyhalite-containing fertilizer granule comprising at least 10% polyhalite [Abu Rabeah Abstract]. The granule of Abu Rabeah also comprises phosphorus and/or other fertilizer components [Abu Rabeah Para. 0088-0096]. As such, in making the fertilizer of Clark as modified by Lewis, one of ordinary skill in the art would look to Abu Rabeah and readily appreciate that it is also standard to include the polyhalite in a broader percentage range (i.e., at least 10%) in combination with the same fertilizing nutrients as taught by Clark. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include polyhalite in an amount comprising at least 10% as taught by Abu Rabeah in the fertilizer granule of Clark as modified by Lewis.
Applicant’s specification discloses that polyhalite is composed of approximately 18.8-19.2% sulfur [Specification Para. 0028] and struvite is composed of approximately 28-29% phosphorus pentoxide [Specification Para. 0027]. As such, the combination of Clark, Lewis and Abu Rabeah containing 1-99% struvite and greater than 10% polyhalite necessarily contains sulfur and phosphate expressed as phosphorus pentoxide in amounts overlapping with the claimed range of ratios of 3 to 8% sulfur:phosphate. Note that similar or overlapping ranges create a prima facie case of obviousness. See MPEP 2144.05.
Claim(s) 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Clark and Lewis as applied to claim 1 above, and further in view of Zentgraf (U.S. Patent No. 5102441, hereinafter “Zentgraf”).
Regarding claim 23, Clark as modified by Lewis teaches the granular fertilizer which can contain other essential nutrients and micronutrients required by plants and/or a binder [Clark Abstract], but does not explicitly disclose that the fertilizer contains one or more of dittmarite, schertilite, periclase, langbeinite and gypsum. However, Zentgraf teaches that it is standard in magnesium- and potassium-containing fertilizers (both of which are supplied by struvite and polyhalite and thus present in the fertilizer of Clark as modified by Lewis) to include langbeinite as a binder [Zentgraf Abstract]. Langbeinite is a particularly advantageous binder because it produces fertilizer granules which are particularly pressure and abrasion resistant so that they can be handled without generation of dust [Zentgraf Col. 1 lines 30-35]. As such, in making the granular fertilizer of Clark as modified by Lewis, one of ordinary skill in the art would look to Zentgraf and readily appreciate the advantages of including langbeinite as a binder. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the granular fertilizer of Clark as modified by Lewis the langbeinite binder as taught by Zentgraf.
Claim(s) 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Clark and Lewis as applied to claim 1 above, and further in view of Moore (U.S. Patent No. 4519831, hereinafter “Moore”) with evidence from “What is Struvite?”, Struvite Removal, struviteremoval.com, retrieved 10/9/2025 (hereinafter “Struvite”).
Regarding claim 29, Clark as modified by Lewis teaches the granular fertilizer, but does not specify a degree of attrition of the granules being less than about 6%. However, Moore teaches that fertilizer attrition is a result effective variable which depends on the pH of the fertilizer while it is made and hardened, the temperature to which the fertilizer is heated during processing, and the pressure applied while agglomerating particles [Moore Col. 4 lines 1-5, 11-15, and 30-35]. Minimizing attrition is advantageous because it avoids product loss during product handling, transport, and application [Moore Col. 3 lines 22-25]. Further, Moore’s fertilizer can be made from “sewage sludge solids, and with by-product streams from the drying of such solids” [Moore Col. 4 lines 21-54]. Struvite is well known as being a byproduct in the wastewater treatment plant industry [Evidenced by Struvite Page 1, “Struvite Formation Issues”], and as such, in making the fertilizer granule of Clark as modified by Lewis, one of ordinary skill in the art would look to Moore and identify an applicable method to reduce attrition. Moore’s fertilizers exhibit essentially no attrition lost in the form of dusting [Moore Col. 7 lines 15-19] or less than 1 percent attrition in the form of dusting during handling [Moore Col. 10 lines 15-22]. As such, in making the fertilizer of Clark as modified by Lewis, one of ordinary skill in the art would readily appreciate the advantages of reducing attrition loss to within the claimed range, and would know how to do so via the teachings of Moore. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to ensure that the degree of attrition of the granules of Clark as modified by Lewis are less than about 6% as taught by Moore.
Response to Arguments
Applicant's arguments filed 2/24/2026 have been fully considered but they are not persuasive.
Applicant argues that Clark and Lewis do not describe a fertilizer composition which comprises both struvite and polyhalite in the specific proportions recited in claim 1 (Remarks Page 3). However, Clark and Lewis teach a range of struvite and polyhalite contents overlapping with the claimed range, establishing a prima facie case of obviousness. Applicant appears to assert unexpected results in response, by arguing that the particular range of 2% to 25% available sulfur to available phosphate expressed as phosphorus pentoxide surprisingly results in a suitable amount of these nutrients for a sustained source over a growing season. The particular range is described as critical to achieving the desired result of maximizing crop yield, reducing wastage of unused nutrients and reducing costs over a growing season (Remarks Page 3).
Applicants can rebut a prima facie case of obviousness by showing the criticality of the range. "The law is replete with cases in which the difference between the claimed invention and the prior art is some range or other variable within the claims. . . . In such a situation, the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range." In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). However, whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980).
Here, Applicant has not shown that the range is critical at least because the asserted unexpected results are not commensurate in scope with the claims. Applicant’s specification appears to only offer two data points as to the weight ratio of available sulfur to available phosphate expressed as phosphorus pentoxide: About 25% and about 2% (Specification Tables 1 to 6 and Para. 0077). As such, Applicant has tested the endpoints of the claimed range, but has not demonstrated that the increased crop yield occurs over the entire claimed range.
Further, to establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). Applicant does not appear to offer any data points outside the claimed range.
Further, evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims. See In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980) and MPEP § 716.02(d) - § 716.02(e). Here, Applicant does not appear to compare the claimed invention with the closest prior art, but rather with a control containing only monoammonium phosphate (Specification Example 7, Para. 0078).
For at least the foregoing reasons, Applicant’s arguments are not found persuasive and the challenged rejections are maintained.
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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/H.E.R./ /JENNIFER A SMITH/Examiner, Art Unit 1731 Primary Patent Examiner, Art Unit 1731
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