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 without traverse of the invention of Group I (claims 1-4, 7-8 and 10-13) in the reply filed on 07/31/2026 is acknowledged.
Claims 15-18, 21-22 and 24-27 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 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 10-11 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.
Claim 10 recites the limitation "the transition metals" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. The phrase lacks antecedent basis because the preceding clause introduces them as “one or more of transition metals”.
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, 4, 7-8 and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Qingyun Zheng (CN 101863698 – cite no 1 in 12/22/2023 IDS - Qingyun, herafter).
In regard to claim 1, Qingyun teaches a slow-release glass fertilizer comprising a raw material composition [para. 0009] comprising the following components:
Component
Claimed Molar Proportion (%)
Prior Art Molar Proportion (%)
P2O5
40-50
30-50
K2O
8-17
5-30
CaO
15-25
1-20
Al2O3
3-10
1-10
Na2O
8-17
15-45
with respect to a combined total molar amount of the components. The ranges taught by Qingyun overlap or encompass the instant claimed ranges. Thus a prima facie case of obviousness exists in view of In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) and In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379, 1382-83 (Fed. Cir. 2003), absent contrary evidence of criticality or non-obviousness of the claimed range. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to select the overlapping portion of the range(s) because where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation [See MPEP 2144.05].
In regard to claim 4, Qingyun teaches the fertilizer according to claim 1, wherein the fertilizer comprises SiO2 with a molar proportion below 10% (e.g. no SiO2 component is taught by the reference and is interpreted as 0% SiO2) [0018-0019].
In regard to claims 7-8, Qingyun teaches the fertilizer according to claim 1, comprising the following components [0009]:
Component
Claimed Molar Proportion (%)
Prior Art Molar Proportion (%)
Fe2O3
0.1-1
1-10
CuO
0.1-1
1-10
with respect to a combined total molar amount of the components. The ranges taught by Qingyun overlap or encompass the instant claimed ranges. As Qingyun teaches ranges which encompass the somewhat narrower claimed range, a prima facie case of obviousness exists in view of In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379, 1382-83 (Fed. Cir. 2003). The Federal Circuit emphasized in In re Peterson that selecting a narrow range from within a somewhat broader range disclosed in a prior art is no less obvious than identifying a range that simply overlaps a disclosed range, absent contrary evidence of criticality or non-obviousness. The combined total of Al2O3, CuO, Fe2O3 is 2% - 20% [0019] which overlaps with the claimed total molar amount of the components when Al2O2 is provided in amounts of at least 1% as presently set forth by Qingyun [0009].
In regard to claims 12-13, Qingyun teaches the fertilizer according to claim 1, wherein the glass fertilizer is formed into a granular glass and then placed into a ball mill for filling, sieved and packaged as powder [0046-0047]. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to perform sieve analysis using commercially available sieves having standard and pre-selected dimensions to formulate a powder with the desired size. One of ordinary skill in the art would have been motivated to choose from a finite number of identified, predictable particle size dimensions with a reasonable expectation of success to arrive at the claimed mean particle size range.
Claims 1, 4 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Shanghai Geling New Material Technology Co Ltd (CN 102120708 – cite no 2 in 12/22/2023 IDS - Shanghai, herafter).
In regard to claim 1, Shanghai teaches a slow-release glass fertilizer comprising a raw material composition [para. 0009] comprising the following components:
Component
Claimed Molar Proportion (%)
Prior Art Molar Proportion (%)
P2O5
40-50
40-60
K2O
8-17
5-30
CaO
15-25
1-20
Al2O3
3-10
1-10
Na2O
8-17
5-30
with respect to a combined total molar amount of the components. The ranges taught by Shangahi overlap or encompass the instant claimed ranges. Thus a prima facie case of obviousness exists in view of In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) and In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379, 1382-83 (Fed. Cir. 2003), absent contrary evidence of criticality or non-obviousness of the claimed range. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to select the overlapping portion of the range(s) because where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation [See MPEP 2144.05].
In regard to claim 4, Shanghai teaches the fertilizer according to claim 1, wherein the fertilizer comprises SiO2 with a molar proportion below 10% (e.g. no SiO2 component is taught by the reference and is interpreted as 0% SiO2) [0008-0021].
In regard to claim 10, Shanghai teaches the fertilizer according to claim 1, comprising one or more of transition metals selected from the periodic table of elements, wherein the transition metals have a combined molar proportions not exceeding 1% of the combined total molar amount of the components (e.g. the sum of the transitional metal elements La2O3, Sm2O3, Y2O3, Gd2O3 is 0.5%～5% which overlaps with the claimed range) [0020].
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Qingyun (CN 101863698) as applied to claim 1 above, and further in view of Tesche (US Patent No. 3,132,020).
In regard to claim 2, Qingyun teaches the fertilizer according to claim 1, but does not explicitly disclose wherein the composition of the glass fertilizer comprises polyphosphate with a molar proportion of 40% or metaphosphate with a molar proportion of 50%, with respect to the combined total molar amount of the components.
Tesche is directed to the production of phosphorus-potassium fertilizer containing water soluble phosphates [col. 1, lines 10-12]. The fertilizer may include insoluble potassium metaphosphate or polyphosphates which are water soluble [col. 2, lines 57-62]. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to include the polyphosphate or metaphosphate within the claimed molar proportions based on their known solubility characteristics. One of ordinary skill in the art would have been motivated, for example, to provide a higher molar proportion of metaphosphate relative to polyphosphate within the ranges taught by Qingyun to meet the phosphorus-based nutritional needs of the plant being treated knowing that polyphosphate will dissolve out at a quicker rate than metaphosphate according to the solubility characteristics confirmed in Tesche.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Qingyun (CN 101863698) as applied to claim 1 above, and further in view of Mohamed et al. (Trans Tech Publications Ltd, 2017).
In regard to claim 3, Qingyun teaches the fertilizer according to claim 1, wherin the molar proportion of K2O and Na2O are within the claimed ranges (see rejection of claim 1 above) but does not explicitly disclose wherein a molar amount of the K2O and a molar amount of the Na2O are equal to each other.
Mohamed et al. is directed to phosphate glass systems useful for glass fertilizer compositions [pg. 146, introduction]. The phosphate glasses of Mohamed are prepared by mixing the Na and K components in varying stoichiometric ratios [para and table bridging pgs. 146-147]. The concentration of phosphate ions released at different immersion times increases as the ratio of Na : K decreases. As the molar ratio of K2O and Na2O is a variable that can be modified, among others, by adjusting the concentration of these components in the phosphate fertilizer glass of Qingyun, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed ratio cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, to an equimolar ratio of K2O and Na2O to obtain the desired phosphate-based glass fertilizer, since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223). Furthermore, when faced with a mixture, one of ordinary skill in the art would be motivated by common sense to select a 1:1 ratio, a ratio that falls within the presently claimed amount, absent evidence of unexpected or surprising results.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Shanghai (CN 102120708) as applied to claim 10 above, and further in view of Frithie (US Patent No. 2,988,439).
In regard to claim 11, Qingyun teaches the fertilizer according to claim 10, but does not explicitly teach the composition comprising at last one of Ni and Co.
Frithie is directed to a composition of soluble glass fertilizer materials [col. 1, lines 10-15]. In the preparation of the fertilizer material at least one minor element compound is included, the minor elements include at least one of […] nickel, vanadium and cobalt [col. 2, lines 8-12]. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to include a nickel or cobalt minor element in the fertilizer composition of Shanghai because it is known that the presence in soil of trace amounts of minor elements is essential for plant growth [col. 1, lines 16-19].
Conclusion
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 August 19, 2026
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