The Mosaic Company

Patent Trials and Appeals BoardJul 31, 2020

2019003407 (P.T.A.B. Jul. 31, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/050,659 02/23/2016 Del Ferguson 3595.504US03 5905 24113 7590 07/31/2020 PATTERSON THUENTE PEDERSEN, P.A. 80 SOUTH 8TH STREET 4800 IDS CENTER MINNEAPOLIS, MN 55402-2100 EXAMINER LANGEL, WAYNE A ART UNIT PAPER NUMBER 1736 NOTIFICATION DATE DELIVERY MODE 07/31/2020 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): efsuspto@ptslaw.com johnson@ptslaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DEL FERGUSON, RONALD OLSON, and CAREY HEINBIGNER Appeal 2019-003407 Application 15/050,659 Technology Center 1700 Before ROMULO H. DELMENDO, JEFFREY B. ROBERTSON, and MERRELL C. CASHION, JR., Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. Appeal 2019-003407 Application 15/050,659 2 DECISION ON APPEAL1 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 21–40. Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. CLAIMED SUBJECT MATTER Appellant states the invention relates to fertilizer compositions, and in particular, entrainment, via compaction processes, of micronutrients into muriate of potash3 (MOP) fertilizers. Spec. 1, ll. 10–13. Claim 21, reproduced below, is illustrative of the claimed subject matter (Appeal Br., Claims Appendix 13): 21. A cohered muriate of potash (MOP) product containing one or more micronutrients, the MOP product being formed from a compacted MOP composition, the composition comprising: muriate of potash containing from about 48.0 weight percent to about 62.0 weight percent K2O; and 1 This Decision includes citations to the following documents: Specification filed February 23, 2016 (“Spec.”); Final Office Action mailed April 10, 2018 (“Final Act.”); Appeal Brief filed December 10, 2018 (“Appeal Br.”); Examiner’s Answer mailed January 23, 2019 (“Ans.”); and Reply Brief filed March 25, 2019 (“Reply Br.”). 2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as The Mosaic Company. Appeal Br. 2. 3 Muriate of potash fertilizers, the most common source of fertilizer potassium, are also known as potassium chloride (KCl) fertilizers. Spec. 2, ll. 12–13. Appeal 2019-003407 Application 15/050,659 3 sodium tetraborate present in an amount such that the MOP product comprises a boron content between 0.001 and 1.0 weight percent. Claim 32 is also independent and recites a method of producing a cohered muriate of potash product containing one or more micronutrients having similar limitations with respect to the weight percent of K2O and sodium tetraborate as recited in claim 21. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Dirksen US 3,794,478 February 26, 1974 Ferguson et al. (hereinafter “Ferguson”) US 7,727,501 B2 June 1, 2010 REJECTIONS 1. The Examiner rejected claims 21–29, 32–37, and 40 under 35 U.S.C. § 103(a) as unpatentable over Dirksen. Ans. 4–5. 2. The Examiner rejected claims 30, 31, 38, and 39 under 35 U.S.C. § 103(a) as unpatentable over Dirksen and Ferguson. Ans. 5. OPINION Rejection 1 Appellant does not present separate arguments with respect to the claims subject to this ground of rejection. See Appeal Br. 10–11. We select claim 21 as representative for disposition of this rejection, with the patentability of the other claims standing or falling with claim 21. 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2019-003407 Application 15/050,659 4 The Examiner’s Rejection In rejecting claim 21 as obvious over Dirksen, the Examiner found Dirksen discloses a potassium chloride fertilizer composition comprising micronutrients, which may include sodium tetraborate. Ans. 4, citing Dirksen, Abstr., col. 4, ll. 43–44. The Examiner found that Dirksen does not disclose the K2O concentration of from about 48.0 to about 62.0 weight percent or the sodium tetraborate concentration between 0.001 to 1.0 weight percent. Id. The Examiner determined it would have been obvious to employ MOP as the source of potassium chloride in the composition and method of Dirksen, since it is well known that MOP is the most common source of fertilizer potassium, and by definition contains 48% to 62% soluble K2O. Id. at 4–5. The Examiner determined it would have been obvious to provide sodium tetraborate at concentrations overlapping the range recited in claim 1 in the composition of Dirksen, because Dirksen discloses compositions having micronutrient values preferably between 0.1 to 10 percent by weight, based on KCl. Id. at 5; Dirksen, col. 11, ll. 28–31. Appellant’s contentions Appellant argues that Dirksen does not disclose the specific combination of MOP and sodium tetraborate as recited in claims, which provides the unexpected results of excellent handling and storage characteristics, as well as high yields of crops when compared to MOP without boron and, in some instances muriate of potash bulk blended with boron applied by preplant and/or sidedress. Appeal Br. 9. Appellant acknowledges the micronutrient range in the claims overlaps with the ranges taught in Dirksen, but that Dirksen discloses further blending with other Appeal 2019-003407 Application 15/050,659 5 primary nutrients, which would lead to amounts of boron that are almost or completely undetectable. Id. at 9–10. Issue Has Appellant demonstrated reversible error in the Examiner’s position that the cohered MOP product recited in claim 21 containing sodium tetraborate such that the MOP product comprises a boron content between 0.001 and 1.0 weight percent would have been obvious over Dirksen? Discussion We are not persuaded by Appellant’s arguments. Dirksen discloses KCl fertilizers are mixed with nutrients including micronutrients, where the mixture is then compacted to result in sheets of KCl containing nutrient particles dispersed therein, and where the sheets are then crushed and screened to provide the desired size of final product. Dirksen, col. 3, ll. 15– 68. Dirksen discloses that as a result of this process, the “removal of the micronutrients from the KCl by abrasion during storage, handling and application is greatly minimized or eliminated.” Id. at col. 3, ll. 31–34, see also col. 4, ll. 3–5. Dirksen discloses that the application of micronutrient is in a “controlled and competent manner so that maximum crop production can be achieved in that soil.” Id. at col. 1, ll. 63–68. Thus, Dirksen discloses precisely the same advantages in its fertilizer compositions that Appellant argues are unexpected in the MOP product of claim 21. See Ans. 6–7. Indeed, Dirksen employs the same method as Appellant for obtaining such results. See Spec. 6, claim 32. Appeal 2019-003407 Application 15/050,659 6 Dirksen discloses the advantages associated with the method disclosed therein are applicable to all commonly used nutrients in amounts necessary to suit a given application, including sodium tetraborate in amounts of 0.1 to 10 wt%, overlapping the amounts recited in the claims. Dirksen, col. 4, l. 5 – col. 5, l. 6; col. 11, ll. 12–31. Similarly, the Specification assigns no particular criticality to the choice of sodium tetraborate micronutrient or amount of micronutrient to be mixed with MOP. Spec. 8, ll. 9–17; 11, l. 11 – 27, l. 11. Moreover, although Dirksen discloses further blending the KCl- micronutrient compositions with other primary nutrients as Appellant points out, Dirksen does not require such mixing. Specifically, following the portion of Dirksen Appellant quotes, Dirksen expressly discloses that the KCl-micronutrient composition itself can be directly applied to soil without further mixing with additional nutrients. Dirksen, col. 10, ll. 37–49. Thus, we are not persuaded by Appellant’s argument that Dirksen’s disclosure of a list of micronutrients present in broader ranges than those claimed fails to render the claimed composition obvious. To the extent Appellant is arguing that the particular combination of sodium tetraborate with MOP in the particular amounts recited in claim 21 provide unexpected results over Dirksen, we are also not persuaded by this argument. “[W]hen unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art.” In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). Here, Appellant has not presented any evidence with respect to the closest prior art of Dirksen. Rather, as discussed above, Appellant argues unexpected results of the claimed compositions when compared to MOP Appeal 2019-003407 Application 15/050,659 7 without boron or muriate of potash bulk blended with boron applied by preplant and/or sidedress.4 Appeal Br. 9. Given that, as noted above, Dirksen discloses the same method as Appellant in obtaining the same results, Appellant’s showing of unexpected results lacking a comparison against the closest prior art (Dirksen) with respect to the particular use of sodium tetraborate in amounts of 0.001 to 1.0 weight percent as recited in claim 21 is insufficient to overcome the Examiner’s prima facie case of obviousness. As a result, we affirm the Examiner’s rejection of claim 21 as obvious over Dirksen. Rejection 2 Appellant does not set forth separate arguments with respect to dependent claims 30, 31, 38, and 39, as rejected over Dirksen and Ferguson, but rather relies on the arguments made for claims 21 and 32. Appeal Br. 11. Accordingly, we affirm the Examiner’s rejection of claims 30, 31, 38, and 39 for the reasons discussed above with respect to Rejection 1. 4 We observe that although Appellant references data published at http://www.aspirepotash.com/performance submitted with an Information Disclosure Statement dated November 16, 2016, we were unable to locate the actual data in the electronic Application file, and we were not able to access the website referenced. Nevertheless, Appellant appears to refer to this data as showing unexpected results relative to prior art methods of combining micronutrients and MOP, which we find unpersuasive for the reasons explained herein. Appeal 2019-003407 Application 15/050,659 8 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 21–29, 32– 37, 40 103(a) Dirksen 21–29, 32– 37, 40 30, 31, 38, 39 103(a) Dirksen, Ferguson 30, 31, 38, 39 Overall Outcome 21–40 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED