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 .
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
Claim Objections
Claim 5 is objected to due to the apparent typographical error “wherein the separation of the solid ammonium sulphate from the mother liquors . . .” (line 2 of the claim). This appears to be a typographical error because solid potassium sulfate is the product separated as a solid from the mother liquors in step (b) of claim 1, while ammonium sulphate is one of the reagents. For purposes of examination, the claim is being interpreted as reciting “solid potassium sulfate.” 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 1-11 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 claim 1, the term “low” in line 2 of the claim is a relative term which renders the claim indefinite. The term “low” is not defined by the claim and the specification does not provide a standard for ascertaining the requisite degree. It is noted that the Specification states that “the maximum chlorine content allowed in this fertilizer must not, however, exceed 3%” [Specification Page 2 lines 21-22] in order to comply with EC regulation; however, Applicant does not clearly state whether this EC regulaiton corresponds to the intended meaning of “low chlorine content” as claimed. Therefore, one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For purposes of examination, any chlorine content is regarded as reading on the term “low.”
Further regarding claim 1, the recitation “the ratio of potassium (K+) to ammonium (NH4+) equivalents in reagents fed to the reactor is less than 1” (lines 10-11 of the claim) renders the claim indefinite for two reasons: The equivalents are recited without units, and as such it is unclear whether the claim intends to refer to molar equivalents or equivalents by weight or volume or some other standard. For purposes of examination, the claim is regarded as referring to molar equivalents.
Similarly, the recitation “the ratio of water moles to K+ equivalents in reagents fed to the reactor is comprised between 9 and 15” (lines 12-13 of the claim) renders the claim indefinite for a lack of units associated with the K+ equivalents. For purposes of examination, this is regarded as referring to molar equivalents.
Regarding claims 9-11, each claim appears to recite the generic “use” of various products:
Claim 9: A use of the main product obtainable with the process of claim 1
Claim 10: A use of the end product obtainable with the process of claim 6
Claim 11: A use of the secondary product obtainable with the process of claim 1
Attempts to claim a process without setting forth any steps involved in the process generally raises an issue of indefiniteness. Merely reciting a use without any active, positive steps delimiting how this use is actually practiced renders a claim indefinite. See MPEP 2173.05(q). Here, Applicant generically recites that the products are used as an NK fertilizer, but this does not include any specific steps as to how one would carry this out.
Note that all other claims are being included as a result of their dependency upon a rejected claim as set forth above.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 9-11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because they are “use” claims. “Use” claims that do not purport to claim a process, machine, manufacture, or composition of matter fail to comply with 35 U.S.C. 101. In re Moreton, 288 F.2d 708, 709, 129 USPQ 227, 228 (CCPA 1961)("one cannot claim a new use per se, because it is not among the categories of patentable inventions specified in 35 U.S.C. § 101 "). See MPEP 2173.05(q). Note that it is appropriate to reject a claim that recites a use but fails to recite steps under both 35 U.S.C. 101 and 35 U.S.C. 112(b) if the facts support both rejections.
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 and 6-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yang (Chinese Patent No. 1218005 A) with reference to the provided machine translation (hereinafter “Yang”) in view of Phinney (U.S. Patent No. 6315976 B1, hereinafter “Phinney”) and Sun (Chinese Patent No. CN 107934994 A) with reference to the provided machine translation (hereinafter “Sun”).
Regarding claim 1, Yang teaches a process for the production of potassium sulfate-based fertilizers having a low chlorine content (e.g., a method for preparing potassium sulfate fertilizer; noting the Examiner’s interpretation on Page 3 of this Office Action, this is regarded as reading on low chlorine content) [Yang Para. 0004], comprising the following steps:
Feeding potassium chloride and ammonium sulphate to a reactor and causing them to react, thus obtaining a reaction product containing solid potassium sulphate in suspension (e.g., ammonium sulfate and potassium chloride are added to the reactor, and the potassium sulfate crystallizes and precipitates in the mother liquor) [Yang Para. 0004],
Separating the solid potassium sulfate from the mother liquors, thus obtaining a main product comprising potassium sulfate and a secondary product comprising the mother liquor (e.g., the potassium sulfate crystallizes and precipitates and is separated from the mother liquor) [Yang Para. 0004];
Said process being characterized in that the ratio of potassium (K+) to ammonium (NH4+) equivalents in reagents fed to the reactor is less than 1 (e.g., the molar ratio of ammonium sulfate to potassium chloride is 1:1.7-2.16; there are 2 mols of ammonium in each mol of ammonium sulfate; as such, the ratio of K+ to NH4+ is 2:1.7-2.16 thereby overlapping with the claimed range) [Yang Para. 0004];
The resulting reaction temperature is between 10 °C and 50 °C (e.g., the reaction temperature is 35 to 55 °C) [Yang Para. 0004] and the reaction time is comprised between 60 and 240 minutes (e.g., the reaction time is 1.5-2.5 hours) [Yang Para. 0004].
Note that similar or overlapping ranges create a prima facie case of obviousness. See MPEP 2144.05.
Yang does not explicitly state that (1) the reaction takes place in water, wherein the ratio of water mols to K+ equivalents is comprised between 9 and 15, or (2) that the pH of the reaction mixture is comprised between 2 and 6.
As to (1), Phinney teaches in a similar reaction between ammonium sulfate and potassium chloride to produce potassium sulfate at a temperature between 30 and 40 °C that the reaction should take place in an aqueous solution, which produces a slurry [Phinney Abstract]. As such, in performing the reaction of Yang, which does not specify a solvent, one of ordinary skill in the art would look for an appropriate solvent and readily identify water from the teachings of Phinney. Further, Phinney teaches that there should be enough water to saturate either the ammonium sulfate or potassium chloride [Phinney at the Paragraph bridging Col. 3 & 4]. Specifically, Phinney includes an example with 845 g water with 546 g KCl [Phinney Col. 5 lines 10-15], which results in a ratio of water mols to K+ mols of approximately 6.4:1. Where the prior art and the claimed range do not overlap but are close, a prima facie case of obviousness exists. See MPEP 2144.05. Further, 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). As such, in performing the reaction of Yang, one of ordinary skill in the art would readily optimize the proportion of water to 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 performing the reaction of Yang to specifically implement water as the solvent in an amount ratio within the claimed range as taught by Phinney.
As to (2), Sun teaches in a similar reaction between ammonium sulfate and potassium chloride to make potassium sulfate fertilizer [Sun Para. 0002 & 0010-0012] that it is standard to ensure that the pH of the resulting solution is within the range of 6-8 [Sun Para. 0016]. As such, in performing the reaction of Yang which does not disclose an appropriate pH, one of ordinary skill in the art would look to Sun to identify a suitable range, thereby readily arriving at a pH overlapping with 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 performing the reaction of Yang to specifically implement a pH within the claimed range as taught by Sun.
Regarding claim 6, Yang as modified by Phinney and Sun teaches the process comprising the subsequent step of drying the main product in step b), thus obtaining an end product consisting substantially of potassium sulfate (e.g., the potassium sulfate crystals are separated from the mother liquor, and the fertilizer is crystallized and precipitated, and the mother liquor is recycled; this separation from the mother liquor necessarily involves at least somewhat drying the resulting fertilizer, as the water and/or solvent content is necessarily reduced; further, the end product is potassium sulfate, thus consists substantially of potassium sulfate) [Yang Para. 0004].
Regarding claim 7, Yang as modified by Phinney and Sun teaches the process wherein the secondary product (the mother liquor) is separated from the potassium sulfate crystals by centrifuge [Yang Para. 0009], and Yang either recycles the mother liquor [Yang Para. 0004] or implements it as a ternary fertilizer [Yang Para. 0011]. This implementation of the mother liquor as a fertilizer is regarded as reading on being sent as-is to an integrated cycle for the production of fertilizer (e.g., used directly as a fertilizer), and is also regarded as reading as being formulated as a liquid fertilizer (because the mother liquor is a liquid).
Regarding claim 8, Yang as modified by Phinney and Sun teaches the process wherein the potassium chloride and ammonium sulfate are reacted in water either continuously or in batches (Yang appears to teach a batch process wherein the potassium chloride and ammonium sulfate are first reacted, and then the mother liquor is recycled to be used as the reaction medium again) [Yang Para. 0009].
Regarding claim 9, a use of the main product as an NK fertilizer would appear to be a recitation of the intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Yang comprises the necessary components and is capable of being as a fertilizer (e.g., the reaction is centrifuged to obtain the requisite potassium sulfate crystals [Yang Para. 0004], and will contain residual N because it is made from ammonium sulfate). Because the modified Yang discloses the formulation claimed, and there appear to be no structural differences imparted by the intended use, it necessarily follows that the formulation meets the recitation of the intended use. Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979).
Regarding claim 10, a use of the end product of the process of claim 6 as an NK fertilizer would appear to be a recitation of the intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Yang comprises the necessary components and is capable of being as a fertilizer (e.g., as discussed in the rejection of claim 6 above, the potassium sulfate crystals are separated from the mother liquor, and the fertilizer is crystallized and precipitated, and the mother liquor is recycled; this separation from the mother liquor necessarily involves at least somewhat drying the resulting fertilizer, as the water and/or solvent content is necessarily reduced; further, the end product is potassium sulfate, with some residual nitrogen, and thus consists substantially of potassium sulfate) [Yang Para. 0004]. Because the modified Yang discloses the formulation claimed, and there appear to be no structural differences imparted by the intended use, it necessarily follows that the formulation meets the recitation of the intended use. Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979).
Regarding claim 11, a use of the secondary product as an NK fertilizer would appear to be a recitation of the intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Yang comprises the necessary components and is capable of being as a fertilizer (e.g., the reaction forms a mother liquor [Yang Para. 0009], and will contain residual N because it is made from ammonium sulfate). Because the modified Yang discloses the formulation claimed, and there appear to be no structural differences imparted by the intended use, it necessarily follows that the formulation meets the recitation of the intended use. Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979).
Claim(s) 2 and 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yang, Phinney, and Sun as applied to claim 1 above, and further in view of Safrygin (Russian Patent No. 2133220 C1) with reference to the provided machine translation (hereinafter “Safrygin”) and Phinney.
Regarding claim 2, Yang as modified by Phinney and Sun does not explicitly state that (1) the ammonium sulfate is fed to the reactor as an aqueous solution or (2) that the potassium chloride is fed to the reactor as a crystalline solid.
As to (1), Safrygin teaches in a similar method of preparing potassium sulfate from potassium chloride and ammonium sulfate in an aqueous medium [Safrygin Para. 0001] that a standard method includes implementing ammonium sulfate in the form of a 38-40% aqueous solution [Safrygin Para. 0002]. As such, in performing the method of the modified Yang, one of ordinary skill in the art would look to Safrygin to identify a suitable form for the ammonium sulfate, thereby arriving at implementing an aqueous solution. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in performing the modified method of Yang to specifically implement an aqueous solution of ammonium sulfate as taught by Safrygin.
As to (2), Phinney further teaches in its similar reaction between potassium chloride and ammonium sulfate that it is standard to use solid potassium chloride as the feedstock material [Phinney Col. 3 lines 9-12]. Solid potassium chloride is an ionic solid and is necessarily crystalline. As such, in performing the method of the modified Yang, one of ordinary skill in the art would look to Phinney to identify a suitable form for the potassium chloride, thereby arriving at implementing a crystalline solid. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in performing the modified method of Yang to specifically implement a crystalline solid form of potassium chloride as taught by Phinney.
Regarding claim 3, Yang as modified by Phinney, Sun and Safrygin teaches the process wherein the concentration of ammonium sulfate in the aqueous solution is comprised between 20% and 35% by weight (e.g., an ammonium sulfate aqueous solution having a concentration of 38-40%) [Safrygin Para. 0002]. Note that where the claimed range and the prior art do not overlap but are merely close, a prima facie case of obviousness exists. See MPEP 2144.05.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yang, Phinney, Sun, and Safrygin (Russian Patent No. 2133220 C1) as applied to claims 1 and 2 above, and further in view of “Ammonium Sulfate,” EPA.gov, Inorganic Chemical Industry Chapter 8.4, 1993 (hereinafter “EPA”).
Regarding claim 4, Yang as modified by Phinney, Sun and Safrygin teaches the process implementing ammonium sulfate, but does not explicitly state a source of the ammonium sulfate being a chemical plant or an effluent treatment plant. However, EPA teaches that 90% of ammonium sulfate commonly used as fertilizer is produced by 3 different processes: a byproduct of caprolactam production, from synthetic manufacture, or as a coke oven byproduct. Other sources include from ammonia scrubbing of tailgas at sulfuric acid plants [EPA Page 1 Para. 1 & 2]. These processes appear to all take place at chemical plants (see, e.g., EPA Page 1 Para. 5 detailing a coke oven byproduct plant, and Page 1 Para. 6 detailing a synthetic plant). As such, selecting ammonium sulfate from a chemical plant or effluent treatment plant amounts to no more than choosing from a finite number of identified, predictable solutions, with reasonable expectation of success. Therefore, it would have been obvious to one of ordinary skill in the art in performing the modified method of Yang to specifically implement ammonium sulfate from a chemical or effluent treatment plant as taught by EPA.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yang, Phinney, and Sun as applied to claim 1 above, and further in view of “Centrifuges,” Wakeman, Thermopedia, 2011 (hereinafter “Wakeman”).
Regarding claim 5, Yang as modified by Phinney and Sun teaches that the solid potassium sulfate is separated by a centrifuge [Yang Para. 0004], but does not explicitly state the type of centrifuge being a pusher or decanter centrifuge. However, Wakeman teaches that a variety of centrifuge options are commercially available, which include, for example, a decanter centrifuge, a disc type centrifuge, and a pusher centrifuge [Wakeman Pages 1-2]. As such, selecting the claimed specific types of centrifuges, when implementing a centrifuge as taught by Yang, 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 performing the modified method of Yang to implement a pusher or decanter centrifuge as taught by Wakeman.
Conclusion
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/H.E.R./Examiner, Art Unit 1731
/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731