The Mosaic Company

Patent Trials and Appeals BoardDec 17, 2021

2020006639 (P.T.A.B. Dec. 17, 2021)

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. 15/324,473 01/06/2017 Kathlene Laurie Jacobson 3595.540WOUS01 8802 24113 7590 12/17/2021 PATTERSON THUENTE PEDERSEN, P.A. 80 SOUTH 8TH STREET 4800 IDS CENTER MINNEAPOLIS, MN 55402-2100 EXAMINER SMITH, JENNIFER A ART UNIT PAPER NUMBER 1731 NOTIFICATION DATE DELIVERY MODE 12/17/2021 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 PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KATHLENE LAURIE JACOBSON, TROY WILLIAM HOBBS, and LAUREN A. BALABAN Appeal 2020-006639 Application 15/324,473 Technology Center 1700 ____________ Before ADRIENE LEPIANE HANLON, MICHAEL P. COLAIANNI, and GEORGE C. BEST, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 8–21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appellant’s invention is directed to a method of manufacturing fertilizers having biological agents incorporated therein (Spec. 1: 8–9). 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42 (2012). Appellant identifies the real party in interest as The Mosaic Company. Appeal Br. 2. Appeal 2020-006639 Application 15/324,473 2 Claim 8 represents the subject matter on appeal: 8. A method of making a biological-laden fertilizer product, the method comprising: providing a plurality of fertilizer granules; dispersing a biological agent into water to form an aqueous solution or suspension containing the biological agent; emulsifying the aqueous solution or suspension in oil to form a water-in-oil emulsion; and spraying fertilizer granules with the emulsion, wherein the biological agent is selected from a group consisting of a biological chemical, plant extract, microbial agent, a living organism, and combinations thereof. Appellant appeals the following rejections: 1. Claims 8–15, and 20 are rejected under 35 U.S.C. § 103 as unpatentable over Schaafsma (US 2011/0000268 A1; Jan. 6, 2011) as evidenced by IKA (IKA Emulsifying, IKA Processing (2019) https://www.ikaprocess.com/en/Emulsifying-appl- 7.html). 2. Claims 16–18 are rejected under 35 U.S.C. § 103 as unpatentable over Schaafsma in view of Ivell (D. Ivell et al., The Evolution of Screening Systems for Optimum Granular Fertilizer Product Quality, 83 Procedia Eng’g 328–335, (2014) (hereinafter “Ivell”)). 3. Claim 19 is rejected under 35 U.S.C. § 103 as unpatentable over Schaafsma in view of Neumeier (Anna Neumeier, Potash Processing: Pelletizing vs. Compaction Granulation” FEECO Int’l (2014), https://web.archive.org/web/20140202035229/ http://feeco.com:80/2014/01/02/potash-processing-pelletizing- compaction-granulation/). Appeal 2020-006639 Application 15/324,473 3 4. Claims 8, 9, 16, 17, and 19–21 are rejected under 35 U.S.C. § 103 as unpatentable over Chen (CN 101885635 (B); Feb. 1, 2012). FINDINGS OF FACT & ANALYSIS Rejections (1) to (3) Appellant argues the claims 8–20 under rejections (1) to (3) as a group (Appeal Br. 8–10). We select claim 8 as representative of the group. 37 C.F.R. § 41.37(c)(1)(iv) (2013). Claims 16–19 under rejections (2) and (3) are not separately argued other than to allege that Ivell and Neumeier do not cure the argued deficiencies of Schaafsma (Appeal Br. 10). The Examiner’s findings and conclusions regarding the § 103 rejection of claim 8 over Schaafsma as evidenced by Ivell are located on pages 3 to 4 of the Final Office Action. The Examiner finds that Schaafsma teaches a process of forming biological coated fertilizer wherein biomass that may contain added water is ground with oil to form an emulsion (Final Act. 3). The Examiner finds that Schaafsma teaches using a rotor-stator mixer to grind and mix the biomass particles and oil (Final Act. 3). The Examiner finds that IKA teaches that a rotor-stator mixer forms emulsions such that Schaafsma’s use of the rotor-stator mixer would have resulted in an emulsion (Final Act. 3). Appellant argues Schaafsma uses predominantly dry biomass which may or may not contain water and is dispersed in or blended with oil (Appeal Br. 9). Appellant contends that Schaafsma’s method of forming the biomass differs substantially from the claimed method where the biological material is formed into an aqueous suspension and then emulsified into the oil (Appeal Br. 9). Appellant argues that the claimed method results in two liquid phases in the emulsion as contrasted with Schaafsma’s solid particles Appeal 2020-006639 Application 15/324,473 4 mixed with oil (Appeal Br. 9). Appellant contends that the water present in Schaafsma’s biomass would result in water entrapped in the suspended biomass composition (Appeal Br. 10). Contrary to Appellant’s arguments, Schaafsma teaches that the biomass composition includes biomass particles and may include added water (Schaafsma ¶¶ 57, 64). The biomass particles are ground using a rotor-stator mixer (Schaafsma ¶ 62). The water added to the biomass is used to “disperse the solid biomass particles.” (Schaafsma ¶ 64). The biomass is ground in the presence of oil and may include up to 25% water (Schaafsma ¶ 63; Ans. 9). The amount of oil in the coating composition may be up to 95% based on the dry weight of the composition (Schaafsma ¶¶ 7, 8). Based on the above findings, Schaafsma discloses that water may be used to disperse the biomass and the biomass is mixed with oil in a rotor- stator mixer. The Examiner finds that IKA teaches that rotor-stator mixers are well suited for emulsifying (Final Act. 3). These findings support the Examiner’s reasonable finding that Schaafsma teaches forming an emulsion of the water-dispersed biomass particles in oil. Schaafsma’s preference for a drier biomass solid composition does not detract from the disclosure that water may be used in amounts of up to 25% by weight to disperse the biomass (¶ 63; Ans. 9). The preponderance of the evidence supports that the mixture of water, biomass particles, and oil using a rotor-stator mixer would reasonably be expected to form an emulsion as claimed. Appellant’s mere attorney argument is insufficient to establish that Schaafsma does not form an emulsion. In re Schulze, 346 F.2d 600, 602 (CCPA 1965). On this record, we affirm the Examiner’s § 103 rejection of claims 8– 15 and 20 over Schaafsma as evidenced by IKA. We further affirm the Appeal 2020-006639 Application 15/324,473 5 § 103 rejections of claims 16–18 over Schaafsma in view of Ivell and claim 19 over Schaafsma in view of Neumeier. Rejection (4) Appellant’s arguments focus on claim 8 only (Appeal Br. 11). Therefore any claim not argued separately will stand or fall with claim 8. The Examiner’s findings and conclusions regarding the rejection of claim 8 over Chen are located on pages 6–7 of the Final Action. The Examiner finds, in relevant part, Chen teaches a method of making a biological fertilizer product that includes dispersing a biological agent (i.e., guar) into water to form a solution containing the agent and then evenly blending the solution with vegetable oil to form a binder (Final Act. 6). The Examiner determines that it would have been obvious that evenly blending an aqueous solution with an oil will result in an emulsion of oil and water containing the biological agent (Final Act. 6–7). Appellant argues that Chen does not teach forming a water-in-oil emulsion by first dispersing the agent in water and then emulsifying the agent-containing dispersion in oil to form the pockets of solution as required by claim 8 (Appeal Br. 11). Appellant contends that evenly blending a material with another material as taught by Chen is synonymous with mixing of two materials to form a single phase composition and is not an emulsion (Appeal Br. 11). Appellant does not contest that Chen teaches dissolving guar and other materials in water, and then “evenly mixing” the solution containing guar with oil to form a binder (Appeal Br. 11). Although Appellant contends the evenly mixing would have been understood as forming a single phase composition, Appellant does not explain how vegetable oil and water Appeal 2020-006639 Application 15/324,473 6 with dissolved material as in Chen would form a single phase solution. Conventionally, oil and water separate and can be emulsified to form either an oil rich phase dispersed in water or a water rich phase dispersed in oil depending on which material is present in the greater amount. Based on Chen’s teachings noted by the Examiner, the preponderance of the evidence favors the Examiner’s obviousness conclusion (Final Act. 6–7). We affirm the § 103 rejection of claims 8, 9, 16, 17, and 19–21 over Chen. DECISION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 8–15, 20 103 Schaafsma, IKA 8–15, 20 16–18 103 Schaafsma, Ivell 16–18 19 103 Schaafsma, Neumeier 19 8, 9, 16, 17, 19–21 103 Chen 8, 9, 16, 17, 19–21 Outcome 8–21 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) (2013). AFFIRMED