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 without traverse of Group I (claims 1-14 and 18-24) in the reply filed on 2/16/2026 is acknowledged.
Claims 15-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 2/16/2026.
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 4-5, 7, 10, and 12 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 4, the recitation “wherein the wax is selected from intermediary wax, paraffin wax, microcrystalline wax, carnauba wax, vegetable wax or mixtures thereof” 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, it is unclear from the language of the claim whether the group as drafted is open or closed because there is no connecting term such as “consisting of.”
Regarding claim 5, the recitation “wherein the oil is selected from mineral oil, hydrotreated process oil, vegetable oil or refined mineral oil” 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, it is unclear from the language of the claim whether the group as drafted is open or closed because there is no connecting term such as “consisting of.”
Regarding claim 7, the recitation “wherein the resin is selected from synthetic resins, esterified natural resins, phenol formaldehyde resins, furfuryl alcohol resins, polyester resins, polyurethane resins or natural resins” 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, it is unclear from the language of the claim whether the group as drafted is open or closed because there is no connecting term such as “consisting of.”
Regarding claim 10, the recitation “wherein the particulate substrate is a nitrogen-containing fertilizer, selected from NP, NK, NPK, ammonium nitrate (AN), calcium ammonium nitrate (CAN), calcium nitrate (CN), AN with sulfur, urea, and urea-ammonium sulfate (UAS), or mixtures thereof” 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, it is unclear from the language of the claim whether the group as drafted is open or closed because there is no connecting term such as “consisting of.”
Regarding claim 12, the recitation “the particulate fertilizer composition comprises 0.05 to 1 wt. % of a coating comprising 50 to 60 weight% of wax, 30 to 40 weight% of oil, 4 to 8 weight% of a resin being oil-soluble and miscible with wax and oil, and optionally 0.01 to 2.0 weight% of a viscoelastic elastomer which is soluble in oil” renders the claim indefinite. Claim 12 depends from claim 10, which includes the coating according to claim 1. However, claim 12 appears to repeat and even broaden the ranges of components previously set forth in the coating of claim 1. Further, claim 12 refers to “a coating” and does not appear to refer back to “the coating” previously established. As such, it is unclear whether claim 12 is establishing a new coating, such as a second coating layer, or is referring back to the same coating established in claim 1 and referred to in claim 10. For purposes of examination, the coating of claim 12 is regarded as referring to the same coating set forth in claim 1.
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) 1-8, 10-12, 18-21, and 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Obrestad (U.S. Patent Pub. No. 2017/0283339 A1, hereinafter “Obrestad”).
Regarding claim 1, Obrestad teaches a conditioning agent for reducing dust formation of a particulate fertilizer (e.g., a conditioning agent for reducing water absorption and dust formation of a particulate fertilizer) [Obrestad Abstract] comprising 51 to 60 wt. % wax (e.g., 10 to 50 wt. % wax), 30 to 39 wt. % oil (e.g., 40 to 90 wt. % mineral oil), 1 to 15 wt. % of a resin being oil-soluble and miscible with the wax and the oil (e.g., 1 to 15 wt. % of a resin being mineral oil-soluble and miscible with wax and mineral oil) and optionally 0.01 to 2.0 wt. % of a viscoelastic elastomer which is soluble in the oil (e.g., 0.1 to 1 wt. % of a viscoelastic elastomer) [Obrestad Abstract].
Note that in the case where the prior art and the claimed range do not overlap but are merely close, a prima facie case of obviousness exists. See MPEP 2144.05. Here, 51% is regarded as being close to 50%, and 39% is regarded as being close to 40%.
Obrestad does not explicitly state that the conditioning agent is for use in a physical fertilizer blend. However, this would appear to be a recitation of the intended use or intended result of the claimed composition. 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 Obrestad comprises the necessary components and is capable of being used in a fertilizer blend. Because Obrestad 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 2, Obrestad teaches the conditioning agent comprising 52 to 59 wt. % of wax (e.g., 10 to 50 wt. % wax) [Obrestad Abstract]. 52% is regarded as being close to 50%.
Regarding claim 3, Obrestad teaches the conditioning agent comprising 32 to 39 wt. % oil (e.g., 40 to 90 wt. % mineral oil) [Obrestad Abstract]. 39 wt. % is regarded as being close to 40 wt. %.
Regarding claim 4, Obrestad teaches the conditioning agent wherein the wax is selected from intermediary wax, paraffin wax, microcrystalline wax, carnauba wax, vegetable wax or mistures thereof (e.g., paraffin wax, intermediary wax, microcrystalline wax, carnauba wax, vegetable wax) [Obrestad Para. 0014].
Regarding claim 5, Obrestad teaches the conditioning agent wherein the oil is selected from mineral oil, hydrotreated process oil, vegetable oil or refined mineral oil (e.g., mineral oil) [Obrestad Abstract].
Regarding claim 6, Obrestad teaches the conditioning agent comprising 2 to 10 wt. % resin (e.g., 1 to 15 wt. % of a resin) [Obrestad Abstract]. Similar or overlapping ranges create a prima facie case of obviousness. See MPEP 2144.05.
Regarding claim 7, Obrestad teaches the conditioning agent wherein the resin is selected from synthetic resins, esterified natural resins, phenol formaldehyde resins, furfuryl alcohol resins, polyester resins, polyurethane resins or natural resins (e.g., synthetic resins, esterified natural resins such as rosin; for example, pentaerythritol rosin ester, phenol formaldehyde resins, furfuryl alcohol resins, polyester resins, polyurethane resins) [Obrestad Para. 0023].
Regarding claim 8, Obrestad teaches the conditioning agent wherein the elastomer is selected from polyisobutylene or styrene-isoprene-styrene block copolymer (e.g., suitable polymers include a styrene-isoprene-styrene block copolymer, and a most preferred elastomer is polyisobutylene) [Obrestad Para. 0034-35].
Regarding claim 10, Obrestad teaches a particular fertilizer composition comprising a particulate substrate and 0.05 to 2.0 wt. % of a coating comprising the conditioning agent of claim 1 (e.g., the conditioning agent is applied to fertilizer particles as a coating in an amount between 0.05 to 2.0 wt. %) [Obrestad Para. 0038].
Regarding claim 11, Obrestad teaches the particulate fertilizer composition wherein the particulate substrate is a nitrogen-containing fertilizer, selected from NP, NK, NPK, AN, CAN, CN, AN with sulfur, urea, and UAS, or mixtures thereof (e.g., the particulate fertilizer may be NP, NK, NPK, AN, CAN, AN with sulfur, urea, urea with sulfur, calcium nitrate, and UAS) [Obrestad Para. 0043].
Regarding claim 12, Obrestad teaches the particulate fertilizer composition wherein the particulate substrate is calcium nitrate (e.g., a particular substrate is calcium nitrate) [Obrestad Para. 0043], and the particulate fertilizer composition comprises 0.05 to 1.0 wt. % of a coating (e.g., 0.05 to 2 wt. % of a coating) [Obrestad Para. 0044] comprising 50 to 60 wt. % of wax (e.g., 10 to 50 wt. % wax), 30 to 40 wt. % of oil (e.g., 40 to 90 wt. % of a mineral oil), 4 to 9 wt. % of a resin being oil-soluble and miscible with wax and oil (e.g., 1 to 15 wt. % of a resin being mineral oil-soluble and miscible with wax and mineral oil) and optionally 0.01 to 2.0 wt. % of a viscoelastic elastomer which is soluble in oil (e.g., 0.1 to 1 wt. % of a viscoelastic elastomer which is soluble in mineral oil) [Obrestad Para. 0044]. Note that similar or overlapping ranges create a prima facie case of obviousness. See MPEP 2144.05.
Regarding claim 18, Obrestad teaches the conditioning agent wherein the wax content is from 54 to 58 wt. % (e.g., 10 to 50 wt. % wax) [Obrestad Abstract]. 54% is regarded as being close to 50%.
Regarding claim 19, Obrestad teaches the conditioning agent wherein the oil content is 34 to 39 wt. % (e.g., 40 to 90 wt. % mineral oil) [Obrestad Abstract]. 39 wt. % is regarded as being close to 40 wt. %.
Regarding claim 20, Obrestad teaches the conditioning agent wherein the resin content is 4 to 8 wt. % (e.g., 1 to 15 wt. % of a resin) [Obrestad Abstract].
Regarding claim 21, Obrestad teaches the conditioning agent wherein the esterified natural resin is pentaerythritol rosin ester (e.g., esterified natural resins such as rosin; for example, pentaerythritol rosin ester) [Obrestad Para. 0023].
Regarding claim 24, Obrestad teaches the particulate fertilizer wherein the content of the coating comprising the conditioning agent is 0.1 to 1.0 wt. % (e.g., the conditioning agent is applied to fertilizer particles as a coating in an amount between 0.05 to 2.0 wt. %) [Obrestad Para. 0038].
Claim(s) 9 and 22-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Obrestad as applied to claim 1 above, and further in view of Badolato (U.S. Patent Pub. No. 2014/0295046 A1, hereinafter “Badolato”).
Regarding claim 9, Obrestad teaches the conditioning agent comprising an antioxidant (e.g., small amounts of an antioxidant such as t-butyl hydroxytoluene may be added to the conditioning agent in order to improve the shelf life) [Obrestad Para. 0037] but does not explicitly provide a percentage thereof to include. However, Badolato teaches that when using butylated hydroxytoluene as an antioxidant in an oil-based liquid formulation [Badolato Abstract & Para. 0012 & 0041] it is standard to implement small amounts between 0.01 to 1 wt. % [Badolato Para. 0041]. As such, in including small amounts of butylated hydroxytoluene as the antioxidant as taught by Obrestad, one of ordinary skill in the art would look to Radolato and readily appreciate that a standard range thereof is 0.01 to 1 wt. %. 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 conditioning agent of Obrestad comprising an antioxidant such as t-butyl hydroxytoluene to specifically include an amount overlapping with the claimed range as taught by Badolato.
Regarding claim 22, Obrestad as modified by Badolato teaches the conditioning agent wherein the antioxidant content is 0.005 to 0.05 w. % (e.g., 0.01 to 1 wt. %, overlapping with the claimed range) [Badolato Para. 0041].
Regarding claim 23, Obrestad as modified by Badolato teaches the conditioning agent wherein the antioxidant is t-butyl hydroxytoluene [Obrestad Para. 0037].
Claim(s) 13 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Obrestad as applied to claims 1 and 10 above, and further in view of Rosenthal (U.S. Patent Pub. No. 2006/0027007 A1, hereinafter “Rosenthal”).
Regarding claim 13, Obrestad teaches the particulate fertilizer composition according to claim 10, but does not explicitly provide for a fertilizer blend composition comprising the particulate fertilizer composition and one or more components in particulate form selected from nitrates, phosphates, sulphates, or chlorides. However, Rosenthal teaches that it is standard and even advantageous to physically blend multiple types of particulate fertilizers [Rosenthal Para. 0019-20]. Rosenthal specifically implements fertilizer granules or particles which are individually coated with resins [Rosenthal Para. 0021-22]. By physically blending different fertilizing nutrients such as various NPK fertilizers, it is possible to achieve a stable and dependable staged release of nutrients over time, taking advantage of the different solubilities of each included type of plant nutrient [Rosenthal Para. 0019-20 & 0022]. For example, a nitrogen source such as nitrate nitrogen (implemented by Obrestad at Para. 0043) can advantageously be blended with potash (i.e., potassium chloride and sulfate of potash) [Rosenthal Para. 0045]. Particularly, implementing potassium sulfate provides a source of long-term potassium to the plant [Rosenthal Para. 0045]. Such blends are adapted to release each fertilizer nutrient during the appropriate growing phase, and require only one application during the plant’s entire life cycle [Rosenthal Para. 0048]. As such, in making the coated particulate fertilizer composition of Obrestad, one of ordinary skill in the art would look to Rosenthal and readily appreciate the advantages of forming a fertilizer blend composition which further comprises nitrates, phosphates, sulfates, or chlorides 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 in making the particulate fertilizer composition of Obrestad to form a fertilizer blend composition containing one or more components in particulate form selected from nitrates, phosphates, sulfates, or chlorides as taught by Rosenthal.
Regarding claim 14, Obrestad as modified by Rosenthal teaches the fertilizer blend composition wherein the one or more components in particulate form comprises potassium chloride and/or potassium sulfate (e.g., potash; including specifically potassium sulfate) [Rosenthal Para. 0045].
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Wasvik (International Patent Pub. No. 01/38263 A1, hereinafter “Wasvik”) teaches a conditioning agent for reducing dust formation of a fertilizer comprising 1 to 60 wt. % wax, 5 to 90 wt. % oil, 5 to 90 wt. % resin, and 0 to 5 wt. % of a polymer [Wasvik Abstract & Page 5, last paragraph].
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/H.E.R./ /JENNIFER A SMITH/Examiner, Art Unit 1731 Primary Patent Examiner, Art Unit 1731