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 1-18) in the reply filed on 09/10/2026 is acknowledged.
Claims 19-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claims 15 and 17 are objected to because of the following informalities:
Claim 15 is missing a comma after the preamble: “[…] fertilizer of claim 6 wherein […]”.
Claim 17 recites the “slow release fertilizer” which is missing a hyphen in “slow-release”. Appropriate correction is required.
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 1 and 6-18 are rejected under 35 U.S.C. 103 as being unpatentable over Testrup (US Patent No. 1,277,155) in view of Ivanov (RU-2018672, Russian language document).
In regard to claims 1 and 6, Testrup teaches a method for creating a fertilizer and the fertilizer produced by the method (e.g. fertilizer from peat and process of making the same) [title], the method comprising:
a) heating a composition comprising peat to a temperature of from about 175°C to about 200°C (e.g. excavated peat is passed through a tubular apparatus where it is heated to a temperature of from 100 to 180°C [pg. 1, lines 56-60]. As Testrup’s range overlaps with the claimed range, a prima facie case of obviousness exists in view of In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), absent contrary evidence of criticality or non-obviousness of the claimed range. Thus, one of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious to select the overlapping portion of the range so as to increase the value of the peat as a fertilizer [pg. 1, lines 37-40].
Testrup does not explicitly teach a step (b) allowing the composition to cool to ambient temperature, thereby creating the fertilizer. However, Ivanov similarly teaches a method of heat treating peat for use as a fertilizer [abstract]. The obtained granules after are cooling by blowing with air to a temperature close to ambient temperature and transferred to the packaging or long-term storage zone [pg. 3, col. 2, lines 30-35]. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to modify the Testrup process by incorporating the cooling step taught by Ivanov. One of ordinary skill in the art would have been motivated to cool the heated peat prior to storage and packaging in order to prevent thermal degradation during storage, allow safe handling by operators or machinery, and ensure stability during transport. One of ordinary skill in the art would have had a reasonable expectation of success because cooling a material to ambient temperature after a thermal treatment step is a conventional, predictable processing technique that involves routine optimization of well-known physical principles.
In regard to claims 7-18, Testrup and Ivanov disclose the fertilizer of claim 6, wherein fertilizer is hydrophobic (e.g. free from water-binding properties and of reduced water content) [Testrup, pg. 2, clam. 8]. The references do not explicitly disclose the properties of the fertilizer as set forth in claims 8-18. However, it is noted, 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 Testrup’s heat treatment which is performed via the claimed method(s), there is a reasonable prima facie basis to presume that the properties of the resulting fertilizer material would exhibit the properties in the same way as claimed, absent evidence to the contrary.
Claims 2-5 are rejected under 35 U.S.C. 103 as being unpatentable over Testrup (US Patent No. 1,277,155) in view of Ivanov (RU-2018672, Russian language document) as applied to claim 1 above, and further in view of Naples Garden (2021).
In regard to claims 2-5, Testrup and Ivanov disclose the fertilizer of claim 1 but do not explicitly teach wherein following step (b), the method further comprises blending the fertilizer with a filler material.
Naples Garden is directed to the components of a healthy potting mix [pg. 1, 1st para.]. Peat moss is mixed with filler material (e.g. perlite and compost) in a potting mix in a ratio of from about 75% (v/v) of filler material and from about % (v/v) of peat [pg. 2; common recipes for a potting mix]. Naples Garden uses the terms sphagnum moss and peat moss interchangeably [pg. 2].
It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to modify the peat fertilizer formulation disclosed by Testrup by combining it with filler material such as perlite and compost as disclosed by Naples. One of ordinary skill in the art would have been motivated to combine perlite/compost with peat to optimize the physical properties of the growing medium. The combination represents nothing more than the predictable combination of known potting mix components operating according to their established functions. One of ordinary skill in the art would have had a reasonable expectation of success because blending inorganic aeration agents (like perlite) into organic fertilizer or soil amendment matrices involves routine physical mixing techniques well-known in the agricultural arts, results in predictable physical and chemical behavior.
Conclusion
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 September 24, 2026
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