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 .
Status of Application
The Examiner acknowledges receipt of the amendments filed 08/19/2026 wherein claims 1, 8, and 13 have been amended. It is further acknowledged that the Applicant confirms election to prosecute the claims of Group I (claims 1-15) without traverse, and acknowledges the election, without traverse, of calcium as the soil nutrient and humic acid as the additive ingredient.
Claims 1-15 are presented for examination on the merits. The following rejections are made.
Claim Objections
Claim 2 is objected to because of the following informalities: it is numbered as claim 1, but should read as claim 2. Appropriate correction is required.
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 and 13 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 claims the subject matter which the inventor or joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 1 and 13, the ratio defining N:P:K is indefinite because it is not described whether the nitrogen in the composition that contributes to the 1-3:0:0, is imparted in the composition from the granulated seed meal alone, or if there is an additional nitrogen source that contributes to this amount. Further, both claims and the specification do not specify whether the amount of each element that makes up the ratio is in a percent by weight, moles, or volume, and whether this ratio is with respect to the total nitrogen in the composition, or the nitrogen that makes up the granulated seed meal comprising saponin.
Claim Interpretation
As above, the ratio of N:P:K is indefinite. Instant specification teaches an example of dispersible granulated seed meal particle preparation, where the only source of nitrogen is the granulated camellia seed meal, and the resulting N:P:K is 1:0:0 (para. [0053]). Further, claim 1 states that the granulated seed meal comprising saponin imparts to the particle a N:P:K range of 1-3:0:0. Since the claim states that the seed meal imparts this concentration, it can be assumed that the only source of nitrogen in the composition to meet the 1-3% limitation is from the granulated seed meal.
Modified Rejections of Record Following Amendments
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.
Claim(s) 1 and 4-11 are rejected under 35 U.S.C. 103 as being unpatentable over Lynch (US 20090013743 A1) in view of Fan (CN 106916012 A), evidenced by Zhang et al. (Camellia o. shell composting, 2020, 15, 2721-2734), hereinafter Zhang et al.
Lynch discloses a water-dispersible bioavailable fertilizer for delivery of bioavailable components.
Regarding claims 1 and 5, Lynch describes that the water-dispersible particles have a mean particle domain size (see claim 26). Lynch further teaches that the particles, containing seed meal (see claim 1), disperse into more than 100 pieces when in contact with water (see claim 1). The particles break up into the smaller pieces over a time period of 1 second to 24 hours, or 1 minute to 1 hour (para. [0013]). The time period range described in Lynch fully encompasses that of instant claim 5. Additionally, the particles are prepared in a drum granulator (para. [0024]), to prepare the granules. Lynch further describes that the fertilizer comprises a binder component present in an amount ranging from 1-95 wt.% (see claim 1).
Regarding claims 1, 10, and 11, while Lynch teaches the claimed invention as above, it does not teach particles where the seed meal is specifically camellia seed meal. Fan teaches a fertilizer that is comprised of camellia seed meal, which contains saponin (see claim 1).
Lynch and Fan are considered to be analogous to the claimed invention because they teach bioavailable fertilizers. Zhang et al. teaches that camellia seed meal is known to contain saponin, which is highly toxic for cold-blooded animals (i.e. earthworms, pg. 2722 line 8), and is used for the control of various pests (pg. 2722, line 14). The skilled artisan would have expected success in incorporating the camellia seed meal in Fan’s fertilizer with the fertilizer taught in Lynch, because camellia seed oil is known in the art to be suitable for use in fertilizers and repelling pests. It would have been obvious to the person of ordinary skill in the art that the combination would keep undesired pests (i.e. worms) away from the region where fertilizer is applied. MPEP § 2143(I)(a).
Lynch describes an example of a composition for dispersible particles with methylene urea (i.e. nitrogen source), nutrient sources, micronutrients, soil amendments, or bio stimulants (see Example D, para. [0042]). The composition of Lynch comprises a binder such as calcium lignosulfonate, corn starch, and corn syrup and further comprises other nutrient sources, listing possible examples as diammonium phosphate or sulfate of potash. The composition of Lynch optionally includes phosphorous, but does not require phosphorous or potassium. It would be obvious to one of ordinary skill in the art at the time of the effective filing date to incorporate the camellia seed meal with saponin of Fan into Example D of Lynch, for saponins benefit in fertilizers and pest repellants as described in Zhang et al.
While Lynch and Fan do not teach the concentration of nitrogen in the composition, Zhang et al. describes measurements of different elements in camellia seed meal, stating that the total nitrogen content in the seed meal ranges from 1.20-1.24 wt.% (see Table 1). The concentration of nitrogen described in the N:P:K ratio of instant claim 1 overlaps with that of Zhang et al., and as such it is inherent that camellia seed meal will impart 1.20-1.24 wt.% nitrogen when added to a composition. If the camellia seed meal of Fan was incorporated into Example D of Lynch, the seed meal would impart to the particle a N:P:K range that overlaps with the range of instant claim 1.
Regarding claim 4, the water-dispersible particles described in Lynch make up a bioavailable fertilizer (see claim 1), that can contain micronutrients or other active ingredients (para. [0013]).
Regarding claims 6-8, Lynch discloses that the water-dispersible particles can further consist of calcium, magnesium, sulfur, iron, manganese, copper, and zinc (see claim 26). The particles can also consist of a natural organic product selected from humic acid, blood meal, bone meal, feather meal, soy meal, meat meal, animal waste, activated sludge, hydrolyzed animal hair, a fish byproduct, chitin, composts, or a combination (see claim 27).
Regarding claim 9, Lynch describes that contact with water causes particle dispersion in a range of 1,000 to 10,000 pieces (see claim 14), and the particles have a mean domain size range from 0.1 to 30 millimeters (see claim 16).
Claim(s) 2-3 and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Lynch (US 20090013743 A1) in view of Fan (CN 106916012 A), evidenced by Zhang et al. (Camellia o. shell composting, 2020, 15, 2721-2734), and further in view of Zaseybida (WO 2017210768 A1).
With respect to claim 2 and 3, Lynch, Fan, and Zhang et al. teach the claimed invention as above, but do not disclose the presence of biochar or microbes in the water-dispersible particles.
Regarding claims 2 and 3, Zaseybida teaches a bioavailable fertilizer composition that contains micronutrients for soil health. The composition taught in Zaseybida further comprises biochar as a remediating agent that functions as a carrier of microorganisms (see claim 7). Zaseybida teaches many benefits of biochar, specifically how it can be impregnated with microbes (pg. 79, para [0003]).
Lynch, Fan, Zhang et al., and Zaseybida are considered to be analogous to the claimed invention because they are in the same field of bioavailable fertilizers with similar active ingredients. It would have been obvious to combine the biochar and microbes taught in Zaseybida into the water-dispersible fertilizer particles taught in Lynch. Zaseybida teaches that biochar can be added to soil to increase retention of nutrients and improve soil functions (pg. 79, para. [0003]). Additionally, Zaseybida teaches that microbes fix and solubilize essential nutrients for plants (pg. 17, para. [0004]). The skilled artisan could have combined the biochar and microbes into the fertilizer particles because Zaseybida teaches these components are both known to be suitable for applications in fertilizers. It would have been obvious that the combination of these components would result in improved benefits of the fertilizer, such as increased retention of nutrients. MPEP § 2143(I)(a).
Regarding claim 13-15, Lynch is directed to a water-dispersible bioavailable fertilizer for delivery of bioavailable components. Lynch teaches water-dispersible particles that have a mean particle domain size (see claim 26), and disperse into over 100 pieces when exposed to water (see claim 1). Additionally, Lynch describes that there is a binder component present in an amount ranging from 1-95 wt.% (see claim 1). Lynch also teaches that the water-dispersible particles can further consist of calcium, magnesium, sulfur, iron, manganese, copper, and zinc (see claim 26).
While Lynch does not describe the presence of camellia seed meal, Fan teaches a fertilizer that does contain this element (see claim 1). Fan describes that the fertilizer will be made up of 6-8 parts camellia seed meal (see claim 1). Zhang et al. teaches the application of camellia seed as a pest repellent (pg. 2722, line 14). As described in detail above, it would be obvious to one of ordinary skill in the art to incorporate the camellia seed meal taught in Fan into the fertilizer described in Lynch. MPEP § 2143(I)(a). While Fan does not disclose the amount of camellia seed meal to be between within the range disclosed in instant claim 13, Lynch teaches a bioavailable fertilizer present where the main component is in an amount from 5-99.9 wt.%, and the binder is present in an amount ranging from 1-95 wt.%. The skilled artisan would have expected success in substituting the bioavailable fertilizer component in Lynch with the camellia seed meal taught in Fan, in the amount 5-99 wt.%. MPEP § 2143(I)(b). The amount of camellia seed meal needed to be effective is an optimizable parameter, inviting one skilled in the art to experiment. Additionally, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence that such concentration is critical. (“[W]here 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.”) In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP § 2144.05(II).
As described in detail above, Lynch describes an example of a composition for dispersible particles with methylene urea (i.e. nitrogen source), nutrient sources, micronutrients, soil amendments, or bio stimulants (see Example D, para. [0042]). The composition of Lynch comprises a binder such as calcium lignosulfonate, corn starch, and corn syrup and further comprises other nutrient sources, listing possible examples as diammonium phosphate or sulfate of potash. The composition of Lynch optionally includes phosphorous, but does not require phosphorous or potassium. It would be obvious to one of ordinary skill in the art at the time of the effective filing date to incorporate the camellia seed meal with saponin of Fan into Example D of Lynch, for saponins benefit in fertilizers and pest repellants as described in Zhang et al.
While Lynch, Fan, and Zaseybida do not teach the concentration of nitrogen in the composition, Zhang et al. describes that the nitrogen content in camellia seed meal ranges from 1.20-1.24 wt.% (see Table 1). The concentration of nitrogen described in the N:P:K ratio of instant claim 1 overlaps with that of Zhang et al., and as such it is inherent that camellia seed meal will impart 1.20-1.24 wt.% nitrogen when added to a composition. Camellia seed meal comprises 1.20-1.24 wt.% nitrogen, and as stated in instant claim 13, the granulated camellia seed meal is present in an amount of 5-99 wt.%. Therefore, if the amount of nitrogen in camellia seed meal is 1.20-1.24 wt.%, the overall amount of nitrogen in the formulation will have an amount that overlaps with that disclosed in instant claim 1. If the camellia seed meal of Fan was incorporated into Example D of Lynch, the seed meal would impart to the particle a N:P:K range that overlaps with the range of instant claim 1.
Lynch does not teach the presence of biochar in the fertilizer, however Zaseybida teaches biochar as a remediating agent in a fertilizer (see claim 7). As described in detail above, Zaseybida teaches many benefits of biochar (pg. 79, para [0003]), and as such it would be obvious one of ordinary skill in the art to incorporate the biochar from Zaseybida into the fertilizer taught in Lynch to improve the benefits of the fertilizer, such as improved retention of nutrients. MPEP § 2143(I)(a).
Claim(s) 12 is rejected under 35 U.S.C. 103 as being unpatentable over Lynch (US 20090013743 A1) in view of Fan (CN 106916012 A), evidenced by Zhang et al. (Camellia o. shell composting, 2020, 15, 2721-2734), in further view of Zhang (CN 109776218 A).
Lynch teaches the claimed invention as above, but does not teach that the fertilizer further contains mustard seed oil. Further, Fan and Zhang et al. teach the presence of camellia seed meal and saponin in a fertilizer, as described above.
Regarding claim 12, Zhang (CN 109776218 A) teaches a fertilizer that contains mustard seed meal (see claim 1).
Lynch, Fan, Zhang et al., and Zhang (CN 109776218 A) are considered to be analogous to the claimed invention because they are each in the field of fertilizers. Zhang (CN 109776218 A) teaches that mustard seed meal contains polyphenols, which promote root growth and prevent the occurrence of underground pests (para. [0019]). The person of ordinary skill in the art would have recognized the reasons for adding the mustard seed meal taught in Zhang (CN 109776218 A) into the fertilizer taught in Lynch, and would further have predicted that the combination would help to reduce presence of underground pests. MPEP § 2143(I)(a).
Response to Applicant’s Arguments
Applicant asserts the following:
Lynch cannot anticipate the instantly claimed invention because saponin is not necessarily present or disclosed in Lynch. Not only is the seed meal of Lynch presented to be optional, but seed meal does not inherently include saponin as there are many seed meals that do not contain saponin.
The water-dispersible pellets of Lynch are designed for the controlled release and delivery of bioavailable nitrogen and are operable without seed meal. On the contrary, the embodiments of the water-dispersible particles of the instant invention are designed for earthworm control and require saponin because it acts as an irritant to earthworm mucus membranes and causes them to vacate the area treated with particles.
Lynch cannot achieve an N:P:K range of 1-3:0:0 as required by amended claim 1. Lynch teaches concentrations of nitrogen in the range of 5-99.9 wt.%, which is well over the 1-3% required by amended claim 1.
Zaseybida fails to compensate for the deficiencies of Lynch, regarding the N:P:K ratio and the use of saponin in the formulation. One of ordinary skill in the art would have no motivation to combine the prior art of record to arrive at the instantly claimed invention.
One of ordinary skill in the art would not be motivated to combine Lynch, Fan, and Chen to arrive at the instantly claimed invention because this combination fails to teach the N:P:K ratio in the range of 1-3:0:0 as required by instant invention.
While Fan and Chen teach camellia seed meal and the efficacy of saponin, the water-dispersible particle of instant invention provides a more effective treatment for earthworms as stated in specification. The results are not predictable from the prior art combination of record. It would not have been obvious to one of ordinary skill in the art to combine the prior art with the expectation of success disclosed in the instant invention.
Fan and Chen fail to cure the deficiencies of Lynch.
Zhang (CN 106916012 A) fails to cure the noted deficiencies of Lynch.
The combination of Lynch, Fan, Chen, and Zaseybida fail to teach an N:P:K range of 1-3:0:0 as required by currently amended independent claim 13, and teaches of Fan, Chen, and Zaseybida fail to cure other deficiencies of Lynch.
In response to argument A, Applicant is correct in that amended claim 1 overcomes the rejection made under 35 U.S.C. 102(a)(1) in view of Lynch, as Lynch no longer reads on every element of the instant invention. As such, the rejections made under 35 U.S.C. 102(a)(1) over Lynch are withdrawn. However, the claims remain rejected under 35 U.S.C. 103 under new rejections as above.
Regarding argument B, the new rejections made under 35 U.S.C. 103 under Lynch in view of Fan, as evidenced by Zhang et al., describe that one of ordinary skill in the art at the time of the effective filing date would have a reasonable expectation of success in incorporating the saponin of Fan into the fertilizer of Lynch. As stated in new 103 rejections above, Zhang et al. specifically describes the benefits of saponin to repel pests, which provides motivation to combine the saponin component of Fan into the particles of Lynch. By adding saponin into the formulation of Lynch, there is a reasonable expectation of success that the fertilizer will have added pesticidal benefits for earthworms.
In response to arguments C and E, regarding the N:P:K ratio, the amount of nitrogen is presented in amended claims 1 and 13 as a ratio, which only requires the presence of nitrogen while phosphorous and potassium are excluded from the composition. As above, Lynch teaches an example of a formulation that comprises nitrogen, while excluding phosphorous and potassium (see Example D). Further, Zhang et al. teaches that nitrogen exists in camellia seed meal at an amount of 1.20-1.24%, overlapping with the range disclosed in instant claims. As such, ratio of amended claim 1 is obvious under Lynch in view of Fan, as evidenced by Zhang et al. because the amount of nitrogen overlaps with what is inherent to camellia seed meal.
In response to argument D, the new rejections under 35 U.S.C. 103 under Lynch in view of Fan, as evidenced by Zhang et al., teach the deficiencies regarding the N:P:K ratio and the saponin in the formulation of Lynch. While applicant is correct that Zaseybida fails to teach the deficiencies under Lynch regarding the N:P:K ratio, new rejections compensate for these deficiencies.
Regarding argument F, the rejections made under 35 U.S.C. 103 describe that one of ordinary skill in the art would be motivated to combine the saponin of Fan into the formulation of Lynch, for the added benefit of acting to repel earthworms, in addition to the fertilizer benefits of the particles of Lynch. As stated in new 103 rejections above, Zhang et al. describes the effects of saponin on cold-blooded organisms, and one would have a reasonable expectation of success in combining the saponin into the particles of Lynch, to yield predictable results of repelling earthworms.
In response to argument G, H, and I, as described in detail in the rejections under 35 U.S.C. 103 above, Lynch, Fan, and Zhang et al. teach the N:P:K ratio of instant claims 1 and 13.
Examiner thanks Applicant for the amendments and the following arguments, but the rejections of claims 1-15 under 35 U.S.C. 103 are maintained.
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 1-9 are rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1, 8, 10, 15-16 of U.S. Patent No. US 8609145 B2 (hereafter Patent ‘145), as evidenced by Zhang et al. (Camellia o. shell composting, 2020, 15, 2721-2734), in view of Zaseybida (WO 2017210768 A1).
Regarding claim 1,5, and 9 of instant invention, Patent ‘145 describes water-dispersible particles that contain seed meal (see claim 10) and a binder component in the amount 1-95 wt.% (see claim 1). When exposed to water, the particles of Patent ‘145 dissolve into more than 100 pieces within 1 second to 1 hour (see claim 1). This range is narrower than that described in instant claim 1. (“A prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness”) MPEP § 2144.05(I). The particles disperse into 1,000-10,000 pieces (see claim 15), and the mean domain size of the particles is 0.1-30 millimeters (see claim 16).
While Patent ‘145 does not claim a granulated seed meal comprising saponin, imparting to the water dispersible particle an N:P:K range of 1-3:0:0, Zhang et al. describes this component, as described in detail above. Zhang et al. teaches that camellia seed meal is known to contain saponin, which is highly toxic for cold-blooded animals (i.e. earthworms, pg. 2722 line 8), and is used for the control of various pests (pg. 2722, line 14). The skilled artisan would have expected success in incorporating the camellia seed meal described in Zhang et al. into the formulation of Patent ‘145 because camellia seed meal is known in the art to be suitable for use in fertilizers and repelling pests. It would have been obvious to the person of ordinary skill in the art that the combination would keep undesired pests (i.e. worms) away from the region where fertilizer is applied. MPEP § 2143(I)(a). Further, Zhang et al. describes measurements of different elements in camellia seed meal, stating that the total nitrogen content in the seed meal ranges from 1.20-1.24 wt.% (see Table 1). The concentration of nitrogen described in the N:P:K ratio of instant claim 1 overlaps with that of Zhang et al., and as such it is inherent that camellia seed meal will impart 1.20-1.24 wt.% nitrogen when added to a composition. If the camellia seed meal of Zhang was incorporated into the formulation of Patent ‘145, the seed meal would impart to the particle an N:P:K range that overlaps with the range of instant claim 1.
Regarding claims 2-4, Patent ‘145 does not claim the presence of biochar, microbes, or bioavailable fertilizer in the composition. However, as discussed in detail above, Zaseybida does teach these components. Zaseybida teaches a bioavailable fertilizer (see claim 1) that contains both microbes and biochar (see claim 7). The person of ordinary skill in the art would have had reasonable expectation of success in incorporating the biochar and microbes of Zaseybida into the fertilizer described in Patent ‘145, for the benefits as described in detail above. MPEP § 2143(I)(a).
Regarding claims 6-8, Patent ‘145 claims a fertilizer that contains an active ingredient selected from the list of calcium, magnesium, sulfur, iron, manganese, copper, zinc, and a combination (see claim 8). The fertilizer of Patent ‘145 further comprises a natural organic product of humic acid, blood meal, bone meal, seed meal, feather meal, soy meal, meat meal, animal waste, activated sludge, hydrolyzed animal hair, a fish byproduct, chitin, composts and combinations (see claim 10).
The conflicting claims of instant invention and Patent ‘145 differ only marginally in scope from claims 1-9 of the present application. Claims 1 and 7 of Zaseybida, and the teachings of Zhang et al., which are discussed above in the rejections under 35 U.S.C. 103, compensate for the deficiency in the conflicting claims concerning the saponin imparting the N:P:K ratio, biochar, bioavailable fertilizer, and microbes.
Response to Applicant’s Arguments – Double Patenting
Applicant asserts the following:
Patent ‘145 fails to teach or suggest a granulated seed meal comprising saponin and imparting to the water dispersible particle a N:P:K range of 1-3:0:0, and Zaseybida fails to cure these deficiencies.
Patent ‘145 either alone or in combination with Zaseybida fail to teach or suggest all features recited in the instantly claimed invention.
In response to arguments A and B, applicant is correct in that Patent ‘145 and Zaseybida in combination fail to teach every element of instant invention following the amendments of instant claim 1, specifically regarding the N:P:K ratio and the saponin in the formulation. However, the claims remain rejected on the ground of non-statutory obviousness-type double patenting, with new rejections above.
Examiner thanks Applicant for the amendments and the following arguments, but arguments are not found to be persuasive in light of new rejections, and as such the rejections of claims 1-9 on the ground of the non-statutory obviousness-type double patenting are maintained.
Conclusion
Claim(s) 1-15 are rejected.
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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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/M.R.M./Examiner, Art Unit 1611
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