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 .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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.
Claims 6 and 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Otkrytoe (RU-2106329 – cite no 1 in 11-06-2024 IDS, Russian Language document) in view of Capitaine (FEECO International, 2019).
In regard to claims 6 and 10, Otkrytoe teaches a fertilizer granule (e.g. granulated composition) [pg. 4, col. 1, lines 1-12; Example 3] including K2Mg(SO4)2 in the form of polyhalite [pg. 4, col. 1, lines 1-2] and an N-fertilizer selected from ammonium nitrate (AN) [pg. 4, col. 1, lines 5-6] in a ratio of 286.51 kg : 295.6 kg (e.g. ~ 30:30) [pg. 4, col. 1, lines 1-6] which lies inside the claimed range.
Otkrytoe is silent with respect to the uniformity index of the granulated composition, particularly where the fertilizer granule is unified with a uniformity index of at least 50 or at least 55 (claim 10).
Capitaine is directed to physical specification for granule fertilizer products [pg. 1]. A uniformity index UI between 40 – 60 is ideal for fertilizer [pg. 2]. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, in the absence of description by Otkrytoe, to formulate the prior art granule composition with a uniformity index within the claimed range at a value of at least 50 or at least 55. One of ordinary skill in the art would have been motivated to do so because a uniformity index within the claimed range helps ensure the particles are uniform, thereby mitigating potential segregation issues [Capitaine, pg. 2]. One of ordinary skill in the art would have had a reasonable expectation of success in achieving this commonly targeted physical specification by well-known production techniques [Capitaine, pg. 1]. Further, with regard to this property, it is noted that the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith, as held by the court in In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972) – as such, determinations of properties not disclosed by the prior art are made based on a preponderance of the evidence provided in both the prior art and the instant disclosure.
In regard to claim 9, Otkrytoe teaches the fertilizer granule of claim 6, further comprising an additive in the form of a sulphate salt (e.g. superphosphate ; (СаН2РО4)2 х Н2О + 2СаSО4 х 2Н2О) [sentence bridging pgs. 3-4].
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Otkrytoe (RU-2106329 – cite no 1 in 11-06-2024 IDS, Russian Language document) in view of Capitaine (FEECO International, 2019) as applied to claim 6 above, and further in view of Bruckbauer (DE-102007034278-A1).
In regard to claim 7, Otkrytoe teaches the fertilizer granule of claim 6 comprising polyhalite and ammonium nitrate (AN) [pg. 4, col. 1, lines 5-6] in a ratio of 286.51 kg : 295.6 kg (e.g. 30:31) [pg. 4, col. 1, lines 1-6]. The reference does not explicitly teach wherein the granule comprises calcium ammonium nitrate within this range.
Bruckbauer is directed to an ammonium nitrate fertilizer granule [abstract]. Bruckbauer describes how it is well known that the addition of approximately 10% calcium carbonate exerts a strong phlegmatizing effect to, thereby reducing the explosive hazard of ammonium nitrate—for instance, in calcium ammonium nitrate—to approximately 12% of that of pure ammonium nitrate [para. 0048].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to perform simple substitution of the ammonium nitrate disclosed by Otkrytoe for calcium ammonium nitrate (CAN) described by Bruckbauer to yield the predictable result of a combination of polyhalite and calcium ammonium nitrate in a ratio of 30:31. One of ordinary skill in the art would have been motivated to do so because ammonium nitrate is classified as a hazardous material for transport purposes and is prone to spontaneous thermal decomposition [0048]. Bruckbauer describes calcium ammonium nitrate as a suitable equivalent with reduced explosive hazard.
In regard to claim 8, Otkrytoe in view of Bruckbauer disclose the granule of claim 7 wherein polyhalite and ammonium nitrate (AN) [pg. 4, col. 1, lines 5-6] are in a ratio of 286.51 kg : 295.6 kg (e.g. 30:31) [pg. 4, col. 1, lines 1-6]. The references do not explicitly disclose wherein said ratio is 30:70. However, Otkrytoe discloses Examples in which the ratio of polyhalite: ammonium compound varies, thus producing fertilizer granules with differing amounts of nutrients provided by the magnesium sulfate component (e.g. polyhalite or kalimagnesia providing MgO and S) and ammonium (e.g. N). Put another way, Otkrytoe teaches the ratio of the nutrient components to be an art recognized result effective variable depending on the desired values of N, P2O, K20, MgO and S. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the ratio of polyhalite to ammonium nitrate or calcium ammonium nitrate to 30:70, respectively to obtain fertilizer with a specific fertilizer grades tailored to each particular case [Otkrytoe; pg. 3, col. 2, lines 3-21]. Alternatively, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ratio through process optimization, since it has been held that there the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980).
Claims 6 and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Scherr (WO-2020064036, German Language document) in view of Capitaine (FEECO International, 2019).
In regard to claims 6 and 10, Scherr teaches a fertilizer granule (e.g. solid granules) comprising polyhalite (e.g. calcined polyhalite) and an N-fertilizer consisting of urea wherein the ratio between polyhalite and urea is about 70:56 (e.g. e.g. 53.5 parts by weight of calcined polyhalite were placed in the Eirichintensive mixer and heated to 75°C. Then 42.7 parts by weight of urea were added and mixed) [pg. 22, Example 1; lines 3-12] which lies inside the claimed range.
Scherr is silent with respect to the uniformity index of the granulated composition, particularly where the fertilizer granule is unified with a uniformity index of at least 50 or at least 55 (claim 10)
Capitaine is directed to physical specification for granule fertilizer products [pg. 1]. A uniformity index UI between 40 – 60 is ideal for fertilizer [pg. 2]. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, in the absence of description by Scherr, to formulate the prior art granule composition with a uniformity index within the claimed range at a value of at least 50 or at least 55. One of ordinary skill in the art would have been motivated to do so because a uniformity index within the claimed range helps ensure the particles are uniform, thereby mitigating potential segregation issues [Capitaine, pg. 2]. One of ordinary skill in the art would have had a reasonable expectation of success in achieving this commonly targeted physical specification by well-known production techniques [Capitaine, pg. 1]. Further, with regard to this property, it is noted that the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith, as held by the court in In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972) – as such, determinations of properties not disclosed by the prior art are made based on a preponderance of the evidence provided in both the prior art and the instant disclosure.
In regard to claims 11-12, Scherr discloses wherein the granule has a crushing strength between 4N and 400 N for particles ranging from 2.5-3.15 mm [pg. 20, lines 4-10] and this is considered to lie within the claimed range of “at least 1.41 kg/granule” where 4 N is equivalent to a minimum force of 0.41 kg up to 40.79 kg across Scherr’s size range.
Response to Arguments
The objections to claims 6-7 and 9 and the rejection of claims 6-9 under 35 U.S.C. 112(b) are withdrawn in view of Applicant’s amendments (07/20/2026) to the claims.
Applicant argues (pg. 8, 2nd full para.) Otkrytoe does not disclose polyhalite because the potassium-magnesium sulfate compound identified by Otkrytoe is chemical distinct from polyhalite. This argument is not persuasive and appears to be a misreading of the prior art reference. Otkrytoe discloses explicitly discloses polyhalite throughout the reference. Polyhalite is also described as a “source” of K2Mg(SO4)2 [abstract]. This is consistent with the plain meaning of polyhalite (e.g. a naturally occurring evaporite mineral composed of hydrated sulfates of potassium, calcium, and magnesium) which anticipates the claim term “polyhalite”.
Applicant’s arguments (pg. 8, last 2 paras.) directed to the “uniformity index” have been fully considered but are moot because the new ground of rejection, in view of Capitaine, sets forth teachings directed to physical specification for granule fertilizer products [pg. 1] which describes a uniformity index UI between 40 – 60 is ideal for fertilizer [pg. 2].
Applicant argues (pg. 9, 2nd para.) the prior art references do not disclose the claimed ratio. This argument is not persuasive. Otkrytoe discloses Examples in which the ratio of polyhalite: ammonium compound varies, thus producing fertilizer granules with differing amounts of nutrients provided by the magnesium sulfate component (e.g. polyhalite or kalimagnesia providing MgO and S) and ammonium (e.g. N). Put another way, Otkrytoe teaches the ratio of the nutrient components to be an art recognized result effective variable depending on the desired values of N, P2O, K20, MgO and S.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 August 4, 2026
