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 with traverse of Group I (claims 1-4) in the reply filed on 9/25/2025 is acknowledged. The traversal is on the ground(s) that new claims 7 and 8 (9/25/2025 claim amendments) require the shared technical feature of the fertilizer granule of claim 1. This is not found persuasive because even though the inventions of Group I (original claims 1-4) and Group II (new claims 7-8) require the technical feature of the fertilizer granule of claim 1, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Lewis as discussed below on Pages 4-5. It is additionally noted that Lewis’ optional use of chloride minerals in [Para. 0076] in replacement of polyhalite as implemented herein does not amount to teaching away from a chloride free fertilizer, as argued by Applicant in the Remarks Page 3.
The requirement is still deemed proper and is therefore made FINAL.
Claims 7 and 8 are therefore withdrawn from further consideration pursuant to 37CFS 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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.
Claim 4 is 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 claim 4, the recitation “wherein said binder is selected from the group including binders . . .” renders the claim indefinite. 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, the group appears to be open and therefore indefinite because the connecting term used is the word “including,” which appears to be non-limiting to the provided selections.
Further regarding claim 4, the phrase "such as" in line 2 of the claim renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Further regarding claim 4, the recitation “acids (nitric, hydrochloric, phosphoric, sulphuric)” in line 3 of the claim renders the claim indefinite because it is unclear whether the limitations inside the parentheses are part of the claimed invention. See MPEP § 2173.05(d).
For purposes of examination, any binder is regarded as reading on the limitations set forth in claim 4.
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) 1-2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lewis (U.S. Patent Pub. No. 2022/0380272 A1, hereinafter “Lewis”).
Regarding claim 1, Lewis teaches a fertilizer granule [Abstract] comprising a mixture of polyhalite and melt urea in a ratio of between 20:80 to 80:20 (e.g., the fertilizer granule comprises a first and second fertilizer composition wherein the first fertilizer composition may be polyhalite and the second fertilizer composition may be urea; the first fertilizer may comprise less than 60 wt. % of the composition and the second fertilizer may comprise more than 40 wt. % of the composition, thereby overlapping with the claimed range [Para. 0018-19]; urea melt is added to polyhalite to form the granules [Para. 0055]);
wherein the melt urea is obtained by warming urea to over 130 °C to melt urea (Note that the phrase “obtained by” appears to set forth a product-by-process limitation, and product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. See MPEP 2113. Regardless, Lewis teaches a granule resulting from a urea melt as discussed above, and further implements the disclosed temperature: e.g., the urea melt is obtained by heating to a temperature above the melting point of urea, often accomplished using a steam heater capable of achieving temperatures in excess of 133 °C) [Para. 0051-52].
Lewis does not explicitly state that the fertilizer is chloride free. However, Lewis teaches that impurities in the mined rock (i.e., here, the impurities in the polyhalite, which would appear to be the only potential chloride source included) may be separated before the mined rock is powdered, or if the impurities are reasonably low, they may be retained [Para. 0050]. Further, Applicant does not appear to provide an explicit definition of “chloride free,” but rather appears to use the terms “low in chloride” (specification page 1) and “chloride free” (specification page 4) interchangeably. Specifically, Applicant appears to say that polyhalite as naturally mined is low in chloride (specification page 1) and does not appear to implement any further purification of the polyhalite to result in a chloride free fertilizer. As such, polyhalite as naturally mined and being low in chloride appears to meets Applicant’s definition of chloride free. Therefore, Lewis teaching that the impurities may be retained or separated is regarded as reading on “chloride free.”
Regarding claim 2, Lewis teaches the granule wherein said ratio is 50:50 (e.g., the polyhalite may comprise less than 60 wt. % of the composition and the urea may comprise more than 40 wt. % of the composition, thereby encompassing the claimed amount and creating a prima facie case of obviousness) [Para. 0018-19].
Claim(s) 3-4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lewis as applied to claim 1 above, and further in view of Farnworth (U.S. Patent Pub. No. 2017/0096376 A1, hereinafter “Farnworth”).
Regarding claim 3, Lewis teaches the granule further comprising a binder [Lewis Para. 0038] but does not explicitly disclose a percentage weight thereof. However, Farnworth teaches that it is standard in polyhalite-containing fertilizer granules or pellets [Farnworth Abstract & Para. 0057] to implement a binder such as starch in an amount between 1 to 3 wt. % [Farnworth Para. 0009-10]. As such, in including a binder in the polyhalite granule as taught by Lewis, one of ordinary skill in the art would look to Farnworth to identify a suitable amount thereof, and would readily identify that the standard amount is within the claimed range. 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 granule of Lewis to include the binder in an amount within the claimed range as taught by Farnworth.
Regarding claim 4, Lewis as modified by Farnworth teaches the binder selected from the provided group (e.g., starch) [Farnworth Para. 0010].
Conclusion
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/H.E.R./ Examiner, Art Unit 1731
/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731