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/Restriction
Applicant’s election of the invention of Group I (claims 1-10) in the reply filed on 06/09/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 11-14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 10/23/2023, 02/04/2024, 04/14/2025 and 11/23/2025 have been considered by the examiner.
Objection to Drawings
The drawings are objected to because:
They contain text that is not in English [e.g. Fig. 2, Fig. 5]
have a line quality that is too faint and text that is illegible or cut off [Fig. 2; Fig. 4, Fig. 5; Fig. 6; Fig. 7; Fig. 8; Fig. 11; Fig. 12; Fig. 13; Fig. 14; Fig. 20]
require color or high-contrast grayscale or alternative methods of line differentiation to interpret the figures [Fig. 3; Fig. 10; Fig. 11; Fig. 12; Fig. 17; Fig. 19; Fig. 21; Fig. 22; Fig. 23; Fig. 30; Fig. 31; Fig. 33; Fig. 34; Fig. 36; Fig. 37]
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-10 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 regard to claims 1-2, the claim limitation related to “DTA peaks” is indefinite. First, the term “degrees” in claim 1, lines 2 and 3 and claim 2, line 2 is missing a unit (e.g. Celsius, Kelvin, Fahrenheit). Second, the first two peaks (115-125 and 220-220) are not identified as endothermic or exothermic. For the purposes of examination, these limitations are interpreted as “ °C ” and either endothermic or exothermic peaks. Third, Differential Thermal Analysis (DTA) peak temperatures heavily depend on the heating rate and atmosphere. Without specifying these conditions in the claim, the boundaries of these ranges are indefinite.
In regard to claims 3-4, the claimed “ratio” is not defined and it is unclear what value is being compared in the ratio (e.g. mol%, weight%, etc.).
In regard to claim 6 the Markush grouping of alternatives is improper because the claim recites the Markush group “selected from the group including…”. The term “including” creates ambiguity about what other unrecited alternatives might be encompassed by the claim.
In regard to claim 6, broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 6 recites the broad recitation(s) “nitrate salts” and “ammonium salts”, and the claim also recites “ammonium nitrate, calcium ammonium nitrate, magnesium ammonium nitrate, ammonium sulphate and ammonium phosphate” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
In regard to claims 8 and 9, the claims introduce ammonium phosphate and ammonium sulfate as additional components. However, claim 7 (from which the claims depend) limits the N-fertilizer to urea. If these components are meant to be included in addition to urea, it creates ambiguity regarding whether the “cocrystal of polyhalite and an N-fertilizer” now contains two N-fertilizers in its crystal lattice.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 7 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 7 depends on claim 6. However, urea is not listed in the Markush group of claim 6. A dependent claim cannot narrow an element to something outside the scope of its parent claim. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements. For the purposes of examination, claim 6 is interpreted as including “urea” in the Markush group listing.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3 and 5-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by K+S Ag (WO 2020064036A1 – Cite No 1 in 04/14/2025 IDS).
In regard to claims 1-2 and 6-7, K+S describes polyhalite mixed with urea in an intensive Eirich mixer and the formed crystals (e.g. 53.5 parts by weight of calcined polyhalite were placed in the Eirich intensive mixer and heated to 75°C. Then 42.7 parts by weight of urea were added and mixed at a speed of 600 rpm for 5 min, with 3.8 parts by weight of water being added in countercurrent at the beginning. The mixture became increasingly liquid and had a creamy consistency. Then the stirring speed is reduced to 100 to 200 rpm in order to promote the formation of granules. From this point on, the mixture was cooled over a period of 10 minutes and the excess water formed in the reaction was driven off with a turbulent air stream. At temperatures below 60 ° C, the mass hardened to form solid granules) [pg. 22, Example 1; lines 3-12]. The solid composition described by K+S is considered a cocrystal of polyhalite and an N-fertilizer (e.g. urea) wherein the crystalline phase of formula (I) (e.g. CaSO4 · 4 CO(NH2)2) is present in X-ray powder diffractogram [pg. 22, lines 14-16] and the claimed differential thermal analysis peaks are considered an inherent feature of the described co-crystallization. Further, as a practical matter, 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, In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972) — therefore, based on the preponderance of evidence with particular attention to the fact that K+S Ag discloses an identical preparation method as the present Application (e.g. polyhalite and urea mixed in an Eirich mixer at high speed) [present Specification, pg. 15, lines 2-8] there is a reasonable prima facie basis to presume that the Differential Thermal Analysis of the composition obtained by K+S Ag would necessarily exhibit the claimed DTA peaks in the same way as claimed, absent evidence to the contrary.
In regard to claim 3, K+S discloses the cocrystal of claim 1, wherein the ratio between said Polyhalite and said N-fertilizer is between 1:5 to 5:1 (e.g. polyhalite mixed with urea in an amount of 53.5 parts by weight of calcined polyhalite and 42.7 parts by weight of urea which equates to a ratio of about 1.25:1) [pg. 22, Example 1; lines 3-5].
In regard to claim 5, K+S discloses the cocrystal of claim 1, but does not explicitly disclose wherein the composition comprises less than 10% wt. of water at 75 % RH after 50 hours from creation. However, based on the preponderance of evidence with particular attention to the fact that K+S Ag discloses an identical preparation method as the present Application (e.g. polyhalite and urea mixed in an Eirich mixer at high speed) wherein K+S describe a step wherein excess moisture is driven off (the mixture was cooled over a period of 10 minutes, and the excess water generated during the reaction was driven off using a turbulent air stream) [pg. 22, lines 9-11] to obtain the product, there is a reasonable prima facie basis to presume that the moisture characteristics of the composition obtained by K+S Ag would necessarily exhibit less than 10% wt. of water at 75 % RH after 50 hours from creation in the same way as claimed, absent evidence to the contrary.
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.
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 4 is rejected under 35 U.S.C. 103 as being unpatentable over K+S Ag (WO 2020064036A1).
In regard to claim 4, K+S discloses the cocrystal of claim 1, wherein the ratio between said Polyhalite and said N-fertilizer (e.g. urea) is about 1.25:1 [pg. 22, Example 1; lines 3-5]. As the prior art’s teaching of 1.25:1 and the instant claimed value of 1.5:1 do not overlap but are close enough such that one skilled in the art would have expected them to have the same properties, a prima facie case of obviousness exists in view of Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985), absent contrary evidence of criticality or non-obviousness. 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.
Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over K+S Ag (WO 2020064036A1) in view of Kelly (US Patent No. 5,228,895).
In regard to claims 8-10, K+S describes polyhalite mixed with urea and the resulting crystalline product [see rejection above], regarding claim 1. The reference does not explicitly disclose wherein the composition further comprises diammonium phosphate (claim 8) or ammonium sulfate (claim 9, 10).
Kelly et al. is directed to a calcium salt-containing fertilizer mixed with N-P-K fertilizer [col. 1, lines 36-40]. “Fertilizer nutrients are old in the art. Primary nutrients for solid fertilizers are nitrogen, phosphorous and potassium supplied by such chemicals as ammonium nitrate, ammonium sulfate, alkali metal nitrates, urea, rock phosphate, mono and diammonium phosphate, […] sulfates and nitrates.” It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include an additional nutrient component in the form of ammonium diammonium phosphate or ammonium sulfate. One of ordinary skill in the art would have been motivated to use the well-known nutrient components alone or in combination with the K+S composition because nitrogen-containing nutrients are essential for plants.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Smith whose telephone number is (571)270-3599. The examiner can normally be reached Monday - Friday 9:30am-6pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber R Orlando can be reached at (571) 270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 June 18, 2026
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