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 2/26/2026:
Claims 1-13 are presently pending
Claims 14-16 are cancelled
The claim rejections under 35 U.S.C. 112(b) are withdrawn in light of amendments to the claims
All prior art grounds of rejection are maintained
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) 1-10 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Saelinger (International Patent Pub. No. 2019/121226 A1, hereinafter “Saelinger”) in view of Fabijanski (U.S. Patent Pub. No. 2020/0275617 A1, hereinafter “Fabijanski”) and Zhu (U.S. Patent Pub. No. 2018/0354869 A1, hereinafter “Zhu”).
Regarding claim 1, Saelinger teaches a fertilizer composition (e.g., a nitrification inhibitor composition applied to fertilizers) [Saelinger Page 14 lines 1-2, 22-25] wherein the composition comprises, relative to the total weight of the composition:
From 0.5 to 32.0 weight percent of at least one sulphur water-solubilizing fertilizing nutrient selected from the provided group (e.g., the composition comprises DMPSA along with at least one additional acid, wherein the additional acid can be methanesulfonic acid, which meets the provided structure [Sealinger Abstract & Page 6 lines 20-21]; the DMPSA is present in an amount comprising at least 10% by weight of the composition [Page 7 lines 35-39] and the additional acid, here the methanesulfonic acid, is present in a molar ratio to the DMPSA of 1:5 to 20:1 [Saelinger Page 7 lines 23-26]; as such, the range of percentages of the sulphur nutrient necessarily overlap with the claimed range),
1 to 20 wt. % of water (the composition of Sealinger is described as aqueous [Saelinger Abstract] containing no additional solvents in significant amounts [Paragraph bridging Pages 3-4]; the DMPSA is present in the composition in an amount comprising at least 10% and preferably up to 60% [Page 7 lines 40-43] and the methanesulfonic acid is present in the molar ratio of 1:5 to 20:1 as described above, with no other components required; as such, the balance of the solution being water, the amount of water necessarily overlaps with the claimed range), and
Wherein the composition comprises at least one phosphorus and calcium water-soluble fertilizing nutrient (e.g., the composition is used in combination with a fertilizer such as calcium ammonium nitrate, calcium nitrate, diammonium phosphate, monoammonium phosphate, calcium cyanamide, NPK fertilizers, UAN, etc.) [Saelinger Page 14 lines 6-21].
Saelinger does not explicitly disclose an amount of the fertilizers; specifically, that the composition has a total calcium content from 0.5 to 32.0 wt. % expressed as CaO, or a total phosphorus content from 3.0 to 65.0 wt. % expressed as P2O5. However, Fabijanski teaches that fertilizer nutrient percentages are an art recognized result effective variable. Specifically, the optimal quantities of nutrients depend on the preexistent nutrient content of the soil [Fabijanski Para. 0162]. These added nutrients supplement existing nutrients, and optimize growth, yield, and performance of crops [Fabijanski Para. 0158]. At the same time, overapplication is an expensive waste which does not further increase crop yield and can even have deleterious effects on plant growth [Fabijanski Para. 0162]. Fertilizer rates vary with soil composition, growing zone, and soil fertility [Fabijanski Para. 0141]. As such, one of ordinary skill in the art would readily optimize the nutrient percentages to within the broad ranges claimed so as to arrive at a fertilizer that supplements nutrients appropriately while avoiding overapplication. Further, Zhu teaches that a standard fertilizer which implements similar fertilizing ingredients such as monoammonium phosphate, calcium nitrate, etc. [Zhu Para. 0073] contains 2.1% calcium oxide and 9.8% phosphorus pentoxide [Zhu Para. 0081]. As such, in making the composition of Saelinger and optimizing the fertilizing nutrients as taught by Fabijanski, one of ordinary skill in the art would look to Zhu and readily implement these standard amounts as a starting point, which fall within the broadly claimed range. "[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) 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 composition of Saelinger to include a calcium and phosphorus content within the ranges as claimed.
Regarding claim 2, Saelinger as modified by Fabijanski and Zhu teaches the composition wherein the sulfur compound is selected from the compounds of formula (IIs) (e.g., methanesulfonic acid; note that here m is the integer 0) [Saelinger Page 6 lines 20-21].
Regarding claim 3, Saelinger as modified by Fabijanski and Zhu teaches the composition wherein the sulfur compound is selected from the provided group (e.g., methanesulfonic acid, which is formula IIs-a) [Saelinger Page 6 lines 20-21].
Regarding claim 4, Saelinger as modified by Fabijanski and Zhu teaches the composition wherein the sulfur compound is present in an amount from 1.0 to 27.0 wt. % (the DMPSA is present in an amount comprising at least 10% by weight of the composition [Saelinger Page 7 lines 35-39] and the additional acid, here the methanesulfonic acid, is present in a molar ratio to the DMPSA of 1:5 to 20:1 [Saelinger Page 7 lines 23-26]; as such, the range of percentages of the sulphur nutrient necessarily overlap with the claimed range).
Regarding claim 5, Saelinger as modified by Fabijanski and Zhu teaches the composition wherein the at least one phosphorus and calcium water-soluble fertilizing nutrient is selected from the provided group or is a mixture selected from the provided group (e.g., the composition is used in combination with at least one fertilizer such as calcium ammonium nitrate, calcium nitrate, diammonium phosphate, monoammonium phosphate, calcium cyanamide, NPK fertilizers, UAN, etc.) [Saelinger Page 14 lines 6-21].
Regarding claim 6, Saelinger as modified by Fabijanski and Zhu teaches the composition having a total calcium content expressed as CaO from 1.0 to 26.0 wt. % (see the optimization argument above, as well as 2.1% calcium oxide specifically taught by Zhu) [Zhu Para. 0081].
Regarding claim 7, Saelinger as modified by Fabijanski and Zhu teaches the composition having a total phosphorus content expressed as P2O5 between 2.5 to 58.0 wt. % (see the optimization argument above, as well as 9.8% phosphorus pentoxide specifically taught by Zhu) [Zhu Para. 0081].
Regarding claim 8, Saelinger as modified by Fabijanski and Zhu teaches the composition having the nutrient nitrogen (e.g., the fertilizer can contain be or contain urea or other forms of nitrogen such as ammonium nitrate, calcium ammonium nitrate, ammonium sulfate nitrate, NPK fertilizers, NK fertilizers, NP fertilizers, UAN, manure, etc.) [Saelinger Page 14 lines 6-21]. Saelinger does not explicitly disclose a nitrogen content to implement; specifically, that the composition has a total nitrogen content from 2.5 to 35.0 wt. % expressed as elemental nitrogen. However, Fabijanski teaches that fertilizer nutrient percentages are an art recognized result effective variable. Specifically, the optimal quantities of nutrients depend on the preexistent nutrient content of the soil [Fabijanski Para. 0162]. These added nutrients supplement existing nutrients, and optimize growth, yield, and performance of crops [Fabijanski Para. 0158]. At the same time, overapplication is an expensive waste which does not further increase crop yield and can even have deleterious effects on plant growth [Fabijanski Para. 0162]. Specifically, excessive nitrogen can result in over-growth of foliage at the expense of flowering and seed set, and the excess nitrogen can also leach into waterways [Fabijanski Para. 0162]. Fertilizer rates vary with soil composition, growing zone, and soil fertility [Fabijanski Para. 0141]. As such, one of ordinary skill in the art would readily optimize the nutrient percentages to within the broad ranges claimed so as to arrive at a fertilizer that supplements nutrients appropriately while avoiding overapplication. Further, Zhu teaches that a standard fertilizer which implements similar fertilizing ingredients such as monoammonium phosphate, calcium nitrate, etc. [Zhu Para. 0073] contains 10.9 wt. % nitrogen [Zhu Para. 0081]. As such, in making the composition of Saelinger and optimizing the fertilizing nutrients as taught by Fabijanski, one of ordinary skill in the art would look to Zhu and readily implement these standard amounts as a starting point, which fall within the broadly claimed range. "[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) 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 composition of Saelinger to include a nitrogen content within the ranges as claimed.
Regarding claim 9, Saelinger as modified by Fabijanski and Zhu teaches the composition having the nutrient potassium (e.g., the fertilizer can contain be or contain NPK fertilizers, NK fertilizers, etc.) [Saelinger Page 14 lines 6-21]. Saelinger does not explicitly disclose a potassium content to implement; specifically, that the composition has a total potassium content from 2.0 to 60.0 wt. % expressed as K2O. However, Fabijanski teaches that fertilizer nutrient percentages are an art recognized result effective variable. Specifically, the optimal quantities of nutrients depend on the preexistent nutrient content of the soil [Fabijanski Para. 0162]. These added nutrients supplement existing nutrients, and optimize growth, yield, and performance of crops [Fabijanski Para. 0158]. At the same time, overapplication is an expensive waste which does not further increase crop yield and can even have deleterious effects on plant growth [Fabijanski Para. 0162]. Fertilizer rates vary with soil composition, growing zone, and soil fertility [Fabijanski Para. 0141]. As such, one of ordinary skill in the art would readily optimize the nutrient percentages to within the broad ranges claimed so as to arrive at a fertilizer that supplements nutrients appropriately while avoiding overapplication. Further, Zhu teaches that a standard fertilizer which implements similar fertilizing ingredients such as monoammonium phosphate, calcium nitrate, urea, potassium sulfate, etc. [Zhu Para. 0073] contains 18.7% potassium oxide [Zhu Para. 0081]. As such, in making the composition of Saelinger and optimizing the fertilizing nutrients as taught by Fabijanski, one of ordinary skill in the art would look to Zhu and readily implement these standard amounts as a starting point, which fall within the broadly claimed range. "[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) 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 composition of Saelinger to include a potassium content within the ranges as claimed.
Regarding claim 10, Saelinger as modified by Fabijanski and Zhu teaches the composition further comprising micronutrients such as magnesium [Saelinger Page 16 lines 30-31 & Page 2 lines 24-24 & Page 3 lines 13]. Saelinger does not explicitly disclose a magnesium content to implement; specifically, that the composition has a total magnesium content from 0.5 to 9.0 wt. % expressed as MgO. However, Fabijanski teaches that fertilizer nutrient percentages are an art recognized result effective variable. Specifically, the optimal quantities of nutrients depend on the preexistent nutrient content of the soil [Fabijanski Para. 0162]. These added nutrients supplement existing nutrients, and optimize growth, yield, and performance of crops [Fabijanski Para. 0158]. At the same time, overapplication is an expensive waste which does not further increase crop yield and can even have deleterious effects on plant growth [Fabijanski Para. 0162]. Fertilizer rates vary with soil composition, growing zone, and soil fertility [Fabijanski Para. 0141]. As such, one of ordinary skill in the art would readily optimize the nutrient percentages to within the broad ranges claimed so as to arrive at a fertilizer that supplements nutrients appropriately while avoiding overapplication. Further, Zhu teaches that a standard fertilizer which implements similar fertilizing ingredients such as monoammonium phosphate, calcium nitrate, urea, potassium sulfate, etc. as well as micronutrients such as magnesium [Zhu Para. 0073] contains 1.9% magnesium oxide [Zhu Para. 0081]. As such, in making the composition of Saelinger and optimizing the fertilizing nutrients as taught by Fabijanski, one of ordinary skill in the art would look to Zhu and readily implement these standard amounts as a starting point, which fall within the broadly claimed range. "[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) 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 composition of Saelinger to include a magnesium content within the ranges as claimed.
Regarding claim 13, Saelinger as modified by Fabijanski and Zhu teaches the composition further comprising at least one additional ingredient selected from the provided group (e.g., the composition can further comprise a carrier, pesticidal compound, herbicide, insecticide, fungicide, growth regulator, etc.) [Saelinger Page 18 lines 12-19].
Claim(s) 11-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Saelinger, Fabijanski and Zhu as applied to claim 1 above, and further in view of Gonzagowski (U.S. Patent No. 11603336 B1, hereinafter “Gonzagowski”).
Regarding claim 11, Saelinger as modified by Fabijanski and Zhu teaches the composition but does not explicitly state that it further comprises a gelling agent selected from the provided group. However, Gonzagowski teaches that gum Arabic, also known acacia gum, is a standard addition to a solid or liquid fertilizer composition [Gonzagowski Abstract]. Specifically, adding about 4 to 6 weight percent acacia gum [Gonzagowski Paragraph bridging Col. 1-2] is beneficial to fertilizer [Col. 3 lines 26-29] at least because it can act as a binding agent and promote emulsification [Col. 4 lines 23-26]. As such, in making the fertilizer composition of Saelinger as modified by Zhu, one of ordinary skill in the art would readily appreciate the advantages of also including the gelling agent gum Arabic as claimed. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention making the composition of Saelinger as modified by Fabijanski and Zhu to further include gum Arabic as taught by Gonzagowski.
Regarding claim 12, Saelinger as modified by Zhu and Gonzagowski teach the composition wherein the gelling agent is present in an amount between 0.05 to 5 wt. % (e.g., 4 to 6 wt. %, overlapping with the claimed range) [Gonzagowski Paragraph bridging Col. 1-2]. Note that similar or overlapping ranges create a prima facie case of obviousness. See MPEP 2144.05.
Response to Arguments
Applicant's arguments filed 2/26/2026 have been fully considered but they are not persuasive.
Applicant first argues unexpected results associated with the specific calcium and phosphorus content claimed, which prevents the precipitation of insoluble salts such as calcium phosphate (Remarks page 9). As such, Applicant appears to argue that the prima facie case of obviousness established by the optimization argument presented in the rejection of claim 1 above is rebutted. This is not found persuasive at least because any unexpected results are not commensurate in scope with the claims. 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). A broad range of the amount of the sulphur water-soluble fertilizing nutrient is claimed (0.5 to 32 wt. %), but Table 1 in the Specification tests only a narrow subset of the amount of the sulphur compound which prevents cloudy precipitates from forming: 5.0, 6.1, 5.3, 6.0, and 10.8 wt. % (Specification Page 43 Table 1). Similarly, a broad range of the CaO content is claimed (0.5 to 32 wt. %), but Table 1 only tests a narrow subset of the broad range which prevents cloudy precipitates from forming: 3.3, 3.1, 3.8, and 1.9 wt. % (Specification Table 1). Similarly, a broad range of the P2O5 content is claimed (3.0 to 65 wt. %), but Table 1 only tests a narrow subset of the broad range: 12.5, 12.0, 5.0, 25.0, and 37.6 wt. % (Specification Table 1). As such, Applicant has not established that any asserted unexpected results flow directly from the range as claimed. Therefore, the asserted unexpected results are not commensurate in scope with the claims.
Applicant further argues that the prior art references do not explicitly discuss an effective correlation between the presence of the sulfur compound and the prevention of the insoluble calcium phosphate salts (Remarks Page 9). However, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Here, Saelinger provides for a combination of the sulphur nutrient, the water, and at least one phosphorus and calcium water-soluble fertilizing nutrient as discussed in the rejection of claim 1 above. The nutrient percentages would readily be optimized as discussed in the rejection of claim 1 above. This combination resulting in the prevention of formation of insoluble calcium phosphate salts appears to flow naturally from the composition established by the prior art references. Therefore, this advantage cannot be the basis for patentability, as the differences would otherwise be obvious.
Applicant further argues that Fabijanski is irrelevant in optimizing Saelinger’s formulations because it focuses on other aspects of agriculture (maximizing carbon sequestration, enhanced productivity, sustainable farming, etc.) (Remarks Page 10). As such, Applicant argues that there is no teaching or motivation that would guide a person of ordinary skill in the art to the fertilizer of claim 1. However, 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). Here, the concentrations of the fertilizing nutrients are known in the prior art, and their adjustment is a matter of routine optimization as discussed in the rejection of claim 1 above. Further, the fact that Fabijanski mentions other advantages (carbon sequestration, enhanced productivity, etc.) does not negative the establishment of the nutrients being a result-effective variable. "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983).
Applicant also appears to argue that the fertilizer of Zhu is made by a different method and as such its nutrient contents are irrelevant to the fertilizer of Saelinger (Remarks Page 12). As similarly discussed regarding the Fabijanski reference above, patents are relevant as references for all they contain. In seeking an appropriate amount of fertilizing nutrients, which are not disclosed by the base reference Saelinger, one of ordinary skill in the art would readily look to other fertilizers to identify suitable amounts, ratios, quantities, etc. thereof to include. As such, one of ordinary skill in the art would readily recognize Zhu as a starting point for an appropriate amount of CaO and P2O5 to include, whether or not the fertilizer has exactly the same form or is made by the same method.
For at least the foregoing reasons, Applicant’s arguments are not found persuasive and the challenged rejections are maintained.
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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/H.E.R./ Examiner, Art Unit 1731
/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731
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