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 factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
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.
Response to Arguments
Applicant’s argument, that Pedersen in Paragraph [0020] discloses 10% to 99.9% sulfur in its pellet composition, is not convincing, since a range of 10 to 99.9% would suggest the ranges of 60% to 95% and 40% to 70% as recited in applicant’s claims. Applicant’s argument, that the important distinction between the composition of Pedersen and that of applicant’s claims is that Pedersen discloses the essential and mandatory inclusion of surfactants such as alkylbenzene sulfonates, is not convincing. Pedersen does not appear to require the presence of surfactants, since Pedersen discloses in Paragraph [0035] that “in another embodiment” the sulfur the pellets contain a surfactant, implying that in other embodiments a surfactant is not required. Moreover, claim 2 of Pedersen recites “at least one” of a binder and a surfactant, which is tantamount to a teaching that the composition may include the binder but not the surfactant. Applicant’s argument, that there is no specific teaching in Pedersen to select gum Arabic or gum karaya from a laundry list of binding agents while excluding the chemical or synthetic excipients, is not convincing, since the use of gum Arabic or gum karaya without the surfactants is suggested by Pedersen. There is no evidence on record of unexpected results which would emanate from the use of gum Arabic or gum karaya as the binder, as opposed to other binders disclosed by Pedersen. Applicant’s argument, that the claimed composition does not include micronutrients, is not convincing, since the composition of Pedersen does not include micronutrients. Applicant’s argument, that the claimed composition shows superior efficacy over the conventional compositions which include synthetic excipients such as lignosulfonates, is not convincing, since Pedersen suggests compositions which include gum Arabic or gum karaya without the inclusion of synthetic or chemical excipients. Applicant’s argument, that claim 27 further includes the feature of a granule size in the range of 0.1 mm to 6 mm, is not convincing, since Pedersen discloses a pellet size of 0.8 mm to 5 mm.
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.
Conclusion
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
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