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 1-16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Lopez et al (US 12,049,431). Lopez et al disclose a liquid aqueous fertilizer, and suggest at col. 2, lines 11-56 that the composition may include a rheology modifier. Lopez et al teach at col. 9, lines 30-65 that the composition that the composition may include various fertilizers, including calcium phosphate, which would be solid. In any event, Lopez et al disclose in the paragraph bridging columns 11 and 12 that the composition may have a solid content of from about 1% by weight to about 80% by weight. The difference between the composition disclosed by Lopez et al, and that recited in claims 1-16 and 18, is that Lopez et al do not disclose that the suspended solid has Dv(25) of 5 micro or more and a Dv(75) of 100 micron or less as determined by laser refractory. It would have been obvious to provide the suspended solid in the composition of Lopez et al with a Dv(250 of 5 micron or more and a Dv(75) of 100 micron or less as determined by laser refraction. One of ordinary skill in the art would have been motivated to do so, since Lopez et al suggest at col. 1, lines 23-25 that the formulation is useful for foliar applications, and one would appreciate that the particle size should not be so large as to plug the spraying nozzle.
Regarding claim 2, it would be within the level of skill of one of ordinary skill in the art to determine a suitable amount of the various components in the composition of Lopez et al.
Regarding claim 3, it would have been obvious to provide a viscosity of 1000-4000 mPa*s(cps) for the composition of Lopez et al, since Lopez et al suggest at col. 9, lines 12-29 that viscosity is a result-effective variable.
Regarding claim 4, it is clear from the examples of Lopez et al that the composition includes more than 5 weight % of the fertilizer.
Regarding claim 5, Lopez et al disclose urea and ammonium salts as fertilizers at col. 9, lines 43-50.
Regarding claims 6 and 7, Lopez et al disclose calcium phosphate as a fertilizer at col. 9, line 53.
Regarding claim 8, it would have been obvious to provide the particle distribution recited therein as the particle size for the solids in the composition of Lopez et al, since Lopez et al suggest at col. 1, lines 23-25 that the formulation is useful for foliar applications, and one would appreciate that the particle size should not be so large as to plug the spraying nozzle.
Regarding claims 9 and 10, Lopez et al disclose anionic surfactants as recited therein at col. 10, lines 24-50.
Regarding claims 11, 12 and 14, Lopez et al disclose xanthan gum as a rheology modifier at col. 2, lines 37-42.
Regarding claim 13, It would have been obvious to provide a viscosity of more than 200 cps for the composition of Lopez et al when added to demineralized water, since Lopez et al suggest at col. 9, lines 12-29 that viscosity is a result-effective variable.
Regarding claim 15, Lopez et al disclose non-ionic surfactants (wetting agents) as recited therein in the paragraph bridging columns 10 and 11.
Regarding claim 18, liquid fertilizers are conventionally applied by side dress or spray.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Lopez et al as applied to claim 1 above, and further in view of Kenton (US 4,356,021). It would have been further obvious from Kenton to include ammonium thiosulfate as the fertilizer in the composition of Lopez et al. One of ordinary skill in the art would have been motivated to do so, since Kenton discloses ammonium thiosulfate as a liquid fertilizer in the Abstract and col. 2, lines 7-10, and Lopez et al suggest at col. 9, lines 43-50 that any suitable ammonium fertilizer can be used as the nitrogen source.
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, 8, 9, 15 and 17 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 claims 4, 8, 9, 15 and 17, the terms “preferably” and “more preferably” render the scope of the claims vague and indefinite, since it is not clear whether the phrases following such terms are positive limitations, or whether they are merely examples of the broader genus.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim s 1-15 and 17-19 of copending Application No. 18/565115application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 6 of SN 18/565115 recites calcium as a source of macronutrients and the suspended solid.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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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