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 1-1 in the reply filed on 9/10/2025 is acknowledged.
Claims 1 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 9/10/2025.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in India on 5/10/2020. It is noted, however, that applicant has not filed a certified copy of the IN202041019739 application as required by 37 CFR 1.55.
Drawings
The drawings are objected to because:
All figures contain the generic phrase “Axis title” on the Y axis. As such, it is unclear what the Y axis is representing.
There are 3 figures included; however, 2 figures are labeled “Fig. 2.” The third figure appears to be a duplicate of the second figure.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Several claims lack indefinite or definite articles before various recitations. Appropriate correction is required for these grammatical errors. Please note that this is not an exhaustive list of recitations lacking indefinite or definite articles.
Claim 2: “selected from combination” in line 3 of the claim should read “selected from a combination”
Claim 3: “13-15% by weight of total formulation” in line 4 of the claim should read “13-15% of the total formulation”
Claim 8: “50-55% by weight of total formulation” in line 3 of the claim should read “50-55% by weight of the total formulation”
Claim 9: “18-20% by weight of total formulation” in line 3 of the claim should read “18-20% by weight of the total formulation”
Claim 13: “in the form of granular form or powder form or liquid form” should read “in the form of a granular form or a powder form or a liquid form”
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 1-14 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 claims 1-14, the several recitations “with full of life” (see, e.g., lines 1-2 of claim 1; however, note that the recitation is included in each one of claims 1-14) render the claims indefinite. The recitation is indefinite because it is unclear what “with full of life” means and whether it adds any limitation to the claims. The phase does not appear to be defined by the specification. For purposes of examination, “with full of life” is regarded as being a non-limiting general term referring to the fertilizer’s qualities including supplying crop nutrition, crop productivity, and soil fertility as described in claim 1.
Regarding claim 1, the recitation “20 to 30% by weight of bentonite along with nutrients, minerals and micronutrient minerals” (lines 4-5 of the claim) renders the claim indefinite. The recitation is indefinite because it is unclear whether the phrase “along with” means that the nutrients, minerals and micronutrient minerals are included in the 20 to 30% by weight range. For example, the recitation could mean that there is a total of 20 to 30% by weight bentonite, nutrients, minerals, and micronutrient minerals, or it could mean that there is a total of 20 to 30% by weight bentonite and an unspecified additional amount of nutrients, minerals, and micronutrient minerals. For purposes of examination, in light of claim 12 which sets forth a separate percentage for the micronutrients and minerals, claim 1 is regarded as setting forth 20 to 30% by weight of bentonite and an unspecified additional amount of the nutrients, minerals, and micronutrient minerals.
Regarding claim 2, the recitation “wherein the phosphate solubilizing microorganisms are selected from combination of Phosphate Solubilizing Bacteria selected from Bacillus spp and Pseudomonas spp and Phosphate Solubilizing fungi selected from Aspergillus spp” renders the claim indefinite for several reasons:
The recitation would appear to set forth a Markush grouping of alternatives. A Markush grouping is a closed group of alternatives, i.e., the selection is made from a group "consisting of" (rather than "comprising" or "including") the alternative members. Abbott Labs., 334 F.3d at 1280, 67 USPQ2d at 1196. If a Markush grouping requires a material selected from an open list of alternatives (e.g., selected from the group "comprising" or "consisting essentially of" the recited alternatives), the claim should generally be rejected under 35 U.S.C. 112(b) as indefinite because it is unclear what other alternatives are intended to be encompassed by the claim. Here, it is unclear from the language of the claim whether the group as drafted is open or closed, as the claim recites that the alternatives “are selected from combination of” (line 3 of the claim) “selected from” (line 4 of the claim) and “selected from” (line 5 of the claim) with no specific connecting term. While there is no particular format required for a Markush grouping, generally the claim contains phrasing such as “selected from the group consisting of X, Y, and Z.” For purposes of examination, this recitation is regarded as referring to a closed group consisting of the recited alternatives.
As drafted, it is unclear exactly which microorganisms are alternatives. For example, the claim could require the presence of one of each of the phosphate solubilizing bacteria and the phosphate solubilizing fungi. Conversely, the presence of one of the two (bacteria or fungi) could meet the claim. Similarly, it is unclear whether both the Bacillus and Pseudomonas varieties of bacteria are required, or whether the presence of only one meets the limitation of the “phosphate solubilizing bacteria.” For purposes of examination, only one of the phosphate solubilizing bacteria or phosphate solubilizing fungi is regarded as being required, and similarly, only one of the Bacillus or Pseudomonas varieties of bacteria are regarded as being required.
Regarding claim 6, the recitation “wherein the Phosphate Solubilizing Bacteria and Plant growth promoting bacteria selected is Pseudomonas fluorescens” renders the claim indefinite because “Phosphate Solubilizing Bacteria” and “Plant growth promoting bacteria” both lack antecedent basis. Claim 6 depends from claim 1, which recites “phosphate solubilizing and plan growth promoting microorganisms,” a phrase which Applicant appears to use to refer to bacteria and/or fungi. As such, it is unclear what the quoted recitations in claim 6 are referring back to, or whether they set forth an additional component. For purposes of examination, claim 6 is regarded as depending from claim 2, which sets forth phosphate solubilizing bacteria and Pseudomonas species.
Regarding claim 11, the recitation “wherein the amount of amino acids, protein, carbohydrates and salts is 2-5% by weight of total formulation”” renders the claim indefinite because amino acids, protein, carbohydrates, and salts all lack antecedent basis. Claim 11 depends from claim 1, which does not set forth any of these components. For purposes of examination, claim 11 is regarded as depending from claim 10, which establishes that the nutrients of claim 1 are selected from amino acids, protein, carbohydrates and salts.
Regarding claim 13, the recitation “wherein the formulation is in the form of granular form or powder form or liquid form with partially or fully soluble in water” renders the claim indefinite. The recitation is indefinite because it is unclear whether the limitation “with partially or fully soluble in water” applies to all the recited forms (granular, powder, liquid) or only the closest recited form (liquid). For purposes of examination, the solubility is regarded as referring to any one of the fertilizer forms.
Note that all other claims are being included as a result of their dependency upon a rejected claim as set forth above.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 8 and 9 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Regarding claim 8, the claim recites that the amount of rock phosphate is 50-55% by weight of the total formulation. However, claim 1 already requires the exact same range of rock phosphate (see lines 4 of claim 1). As such, claim 8 fails to further limit claim 1.
Regarding claim 9, the claim recites that the amount of bentonite is 18-20% by weight of the total formulation. However, claim 1 already requires the exact same range of bentonite (see line 4 of claim 1). As such, claim 9 fails to further limit claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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) 1-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sinclair (International Patent Pub. No. 95/06623, hereinafter “Sinclair”) in view of Merritt (U.S. Patent No. 11,136,275 B2, hereinafter “Merritt”).
Regarding claim 1, Sinclair teaches a bio-phosphate fertilizer formulation with full of life for crop nutrition, crop productivity and soil fertility (e.g., a fertilizer composition including a phosphate material, a nutrient, and phosphate solubilizing fungus and microorganisms) [Sinclair Abstract] comprising:
phosphate solubilizing and plant growth promoting microorganisms (e.g., phosphate solubilizing fungus and microorganisms and free ammonia releasing microorganisms) [Sinclair Abstract],
50 to 55 wt. % rock phosphate (e.g., 5-99.9 wt. % rock phosphate) [Sinclair Page 3 lines 5-10],
18 to 20 wt. % bentonite (e.g., a non-phosphate mineral substrate such as bentonite [Sinclair Page 4 lines 19-25] in an amount comprising 0-95 wt. % of the composition [Sinclair Page 3 lines 5-10]) and
minerals, macro, and micronutrients (e.g., nutrients and additional non-phosphate mineral substrates [Sinclair Page 3 lines 5-10] such as lime, clays, zeolites, or various minerals [Sinclair Page 4 lines 26-30] and other fertilizing ingredients containing trace elements [Sinclair Page 11 lines 32-34 & Claim 38].
Sinclair teaches that the microorganisms are included in an amount between trace-5% of the composition [Sinclair Page 3 lines 5-8], which falls outside the claimed range of the phosphate solubilizing and plant growth promoting microorganisms of 13 to 15 wt. % of the composition. However, Sinclair teaches that this weight does not include any culture or growth medium, which can be an addition constituent [Sinclair Page 12 lines 9-11]. Further, Sinclair teaches that the microorganisms themselves can increase in abundance over time when the product is stored [Sinclair Page 8 lines 12-14]. Further, Merritt teaches that it is standard in a rock phosphate-based fertilizer granule [Merritt Abstract] containing phosphate-solubilizing bacteria [Merritt Col. 6 lines 18-23] to include the microbes in an amount between 0.0025% to 20% of the composition [Merritt Col. 22 lines 40-45]. As such, in making the fertilizer of Sinclair which is suggested to contain more than 5% microorganisms and culture materials, especially over time, one of ordinary skill in the art would look to Merritt and readily appreciate that it is also standard to include the bacteria in a broader range between 0.0025% to 20%. 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 the phosphate solubilizing and plant growth promoting microorganisms in an amount within the range of 13 to 15 % by weight as claimed. Note that similar or overlapping ranges create a prima facie case of obviousness. See MPEP 2144.05.
Regarding claim 2, Sinclair as modified by Merritt teaches the fertilizer wherein the phosphate solubilizing microorganisms are selected from a combination of phosphate solubilizing bacteria selected from bacillus spp & pseudomonas spp and phosphate solubilizing fungi selected from aspergillus spp (e.g., suitable microorganisms include various aspergillus species [Sinclair Page 2 lines 24-28], bacillus species such as bacillus megatherium, and various pseudomonas species) [Sinclair Page 8 lines 17-25].
Regarding claim 3, Sinclair as modified by Merritt teaches the fertilizer comprising phosphate solubilizing bacteria and phosphate solubilizing fungi (e.g., suitable microorganisms include various aspergillus species [Sinclair Page 2 lines 24-28], described as being suitable phosphate solubilizing fungi in claim 2, and bacillus species such as bacillus megatherium, and various pseudomonas species, described as being suitable phosphate solubilizing bacteria in claim 2) [Sinclair Page 8 lines 17-25]) between 13-15% by weight of the total formulation (e.g., 0.0025% to 20% of the composition) [Merritt Col. 22 lines 40-45], but does not explicitly state that the bacteria and fungi are included at a ratio of 1:1. However, Sinclair further teaches that “both fungus and microbes are considered to be useful in the present invention and it is possible that a combination of, or more than one of, each group may be employed in the present invention” [Sinclair Page 8 lines 5-7]. In combining the fungus and microbes (i.e. bacteria) as taught by Sinclair, one of ordinary skill in the art, absent instruction otherwise, would start by including them in a 1:1 ratio. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the fertilizer of Sinclair as modified by Merritt to include the fungus and bacteria in a 1:1 ratio as claimed.
Regarding claim 4, Sinclair as modified by Merritt teaches the fertilizer wherein the phosphate solubilizing bacteria is bacillus megaterium [Sinclair Page 8 lines 17-25].
Regarding claim 5, Sinclair as modified by Merritt teaches the fertilizer wherein the phosphate solubilizing fungi is aspergillus spp [Sinclair Page 2 lines 24-28].
Regarding claim 6, Sinclair as modified by Merritt teaches the fertilizer wherein the phosphate solubilizing bacteria and plant growth promoting bacteria selected is a variety of pseudomonas species [Sinclair Page 8 lines 17-25], but does not explicitly state the species being pseudomonas fluorescens. However, Merritt further teaches in its rock phosphate-based fertilizer granule [Merritt Abstract] containing phosphate-solubilizing bacteria [Merritt Col. 6 lines 18-23] that it is standard to select the pseudomonas species from the group of fluorescens, putida, striata, and aeruginosa [Merritt Col. 20 lines 10-18]. As such, choosing pseudomonas fluorescens from the limited list of phosphate solubilizing pseudomonas species taught by Merritt amounts to no more than choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the fertilizer of Sinclair containing pseudomonas species to specifically select pseudomonas fluorescens as taught by Merritt.
Regarding claim 7, Sinclair as modified by Merritt and X teaches the fertilizer wherein the amount of the pseudomonas fluorescens is 2-3% by weight of the total formulation (e.g., the total microbial composition, which can be or include pseudomonas species [Sinclair Page 8 lines 17-25] such as fluorescens [Merritt Col. 20 lines 10-18] is included in an amount between 0.0025% to 20% of the fertilizer as discussed in the rejection of claim 1 above [Merritt Col. 22 lines 40-45]; as such, the possible amounts of pseudomonas fluorescens implemented within the microbial composition necessarily overlap with the claimed range, creating a prima facie case of obviousness).
Regarding claim 8, Sinclair as modified by Merritt teaches the fertilizer wherein the amount of rock phosphate is 50-55% by weight of the total formulation (e.g., 5-99.9 wt. % rock phosphate) [Sinclair Page 3 lines 5-10].
Regarding claim 9, Sinclair as modified by Merritt teaches the fertilizer wherein the amount of bentonite is 18-20% by weight of the total formulation (e.g., a non-phosphate mineral substrate such as bentonite [Sinclair Page 4 lines 19-25] in an amount comprising 0-95 wt. % of the composition [Sinclair Page 3 lines 5-10]).
Regarding claim 10, Sinclair as modified by Merritt teaches the fertilizer wherein the nutrients are selected from amino acids, protein, carbohydrates and salts (e.g., protein-based nutrients from fish or animals can be included in an amount between 0-15% by weight of the composition) [Sinclair Abstract & Page 12 lines 33-35].
Regarding claim 11, Sinclair as modified by Merritt teaches the fertilizer wherein the amount of amino acids, protein, carbohydrates and salts is 3-5% by weight of the total formulation (e.g., protein-based nutrients from fish or animals in an amount between 0-15% by weight of the composition [Sinclair Abstract & Page 12 lines 33-35]; the amino acids, carbohydrates and salts are recited in the alternative in claim 10 and as such the presence of the proteins in the amount within the claimed range are regarded as reading on the claim).
Regarding claim 12, Sinclair as modified by Merritt teaches the fertilizer wherein the amount of micronutrients and minerals is 2-3% by weight of the total formulation (e.g., a fertilizer or mixture containing trace elements can be included in an amount of up to 90% of the composition, and other minerals such as gypsum and lime can be added in an amount of up to 95% of the composition) [Sinclair Page 11 lines 25-34].
Regarding claim 13, Sinclair as modified by Merritt teaches the fertilizer wherein the formulation is in a granular or powder form [Sinclair Page 4 lines 5-6] and is partially or fully soluble in water (e.g., upon application of the fertilizer, the nutrients are released at a relatively slow rate, which necessarily implies partial solubility of the fertilizer [Sinclair Page 15 lines 34-35; further, the fertilizer contains phosphate and phosphate-solubilizing bacteria, which will necessarily result in at least partial solubility of the included phosphate).
Regarding claim 13, Sinclair as modified by Merritt teaches the fertilizer wherein the formulation is in a granular form [Sinclair Page 4 lines 5-6].
Conclusion
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/H.E.R./Examiner, Art Unit 1731
/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731