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 .
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.
Claims 19, 21, 23, 26-30,32-34 and 36 are rejected under 35 U.S.C. 103 as being unpatentable over Pedersen (US 2012/0036906) (newly cited). Pedersen et al disclose dispersible sulphur fertilizer pellets comprising micronized Sulphur and a binder and teach in Paragraph [0034] that the binder may be gum Arabic or gum karaya. The differences between the composition disclosed by Pedersen et al, and that recited in applicant’s claims, are that Pedersen et al do not disclose particles in the size range of 0.1 micron to25 microns, that the elemental sulphur is present in the range of 60 % w/w to 95% w/w of the total composition, that the gum Arabic or gum karaya is present in the range of 0.1% w/w to 40% w/w of the total composition, and that the gum Arabic and gum karaya has a viscosity of 400 cps at less than 30% (w/w) aqueous dispersion of the gum Arabic or gum karaya. In would be obvious to provide particle in the size range of 0.1 micron to 25 microns in the pellets of Pedersen. One of ordinary skill in the art would be motivated to do so, since Pedersen teaches in the Abstract and Paragraph [0033] that the micronized sulphur is 80% less than 30 microns in diameter, which would suggest a size range of 0.1 to 25 microns. It would be further obvious to provide the elemental sulfur in the range of 60% w/.w to 95% w/w in the composition. One of ordinary skill in the art would be motivated to do so, since Pedersen discloses in Paragraph [0034] that the binder is present in amounts ranging from 0.05% to 25% by weight of the total weight of the pellet, which would suggest that the amount of sulfur is greater than 75%. It would be further obvious to provide the gum Arabic or gum karaya in the range of 0.1% w/w to 40% w/w of the total composition, since Pedersen to n teaches in Paragraph [0034] that the binder is present in amounts ranging from 0.05% to 25% by weight of the total dry weight of the pellet. It would be even further obvious to provide the gum Arabic or gum karaya at a viscosity of ess than 400 cpc at less than 30% (w) aqueous dispersion, since gum Arabic solutions exhibit low viscosity, especially at lower concentrations. In any event, Pedersen discloses drying temperatures of 50 C to 100 C in Paragraph [0039]. The viscosity of the gum Arabic would be less than 400 cps at less than 30% (w/w) aqueous dispersion, since the viscosity would decrease at increasing temperatures.
Regarding claims 26, Pedersen discloses in Paragraph [0033] that the sulfur is micronized. It would be obvious to provide a size of 0.1 to 15 microns as such micronized sulfur.
Regarding claims 27 and 28, Pedersen discloses a pellet size of 0.6 to 10 millimeters in Paragraph [0052].
Regarding claims 29 and 30, Pedersen discloses in Paragraph [0029] that the pellets are dispersible.
Regarding claims 22 and 23, Pedersen discloses in Paragraph [0040 that a surfactant and clay can be added to the sulfur. Such water would constitute a diluent, and the clay would be a suspending agent.
Regarding claim 34, Pedersen discloses in Paragraph [0033] that the composition can be formed using high speed mixing.
Regarding claim 36, Pedersen discloses in Paragraph [0033] that the composition can be produced using a wet milling process. It is further noted that claim 36 does not require that the composition be in liquid suspension form.
Applicant’s argument, that the claimed composition excludes chemical or non-synthetic excipients, whereby the composition does not leave any residue in the soil due to the absence of synthetic excipients, thereby reducing the burden on the environment and rendering the composition environmentally friendly, is not convincing, since Pedersen contemplates a composition comprising only elemental sulfur and a binder, wherein the binder can be gum Arabic or gum karaya. Applicant’s argument, that the results provided in Tables 1, 2 and 3 (pages 35-41) of applicant’s specification clearly show that the claimed composition with non-synthetic excipients and which include hydrocolloids of specific viscosity as claimed shoe superior efficacy over the conventional compositions which include synthetic excipients such as lignosulphonate, is not convincing, since Pedersen contemplated compositions which do not include synthetic excipients such as lignosulfonate.
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 19, 21, 23, 26-30, 32-34 and 36 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. In claim 19, it is indefinite as to whether the composition is in both forms of granules and liquid suspensions, since line 2 recites “granules “and” Liquid suspensions”. In claim 32, it is indefinite as to whether the “wetting agents” recited in line 4 are required to be the same “wetting agents” recited earlier in the claim. In claim 36, last line, it is indefinite as to whether “composition” is required to be the “organic agricultural composition in the liquid suspension form”.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WAYNE A LANGEL whose telephone number is (571) 272-1353. The examiner can normally be reached Monday through Friday from 8:15 am to 4:15 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Zimmer can be reached at 571-270-3591. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WAYNE A LANGEL/Primary Examiner, Art Unit 1736