Ex parte Babu
| Docket Number | Appeal 2023-003954,Application 16/252,120,Technology Center 1700 |
| Decision Date | 26 January 2024 |
| Parties | Ex parte TAPASYA BABU, ELLIOTT MARTIN, ROBERT A. GEIGER, and ANDRES REYES GAIGE |
| Court | Patent Trial and Appeal Board |
Before TERRY J. OWENS, MERRELL C. CASHION, JR., and SHELDON M McGEE, Administrative Patent Judges.
McGEE Administrative Patent Judge.
Pursuant to 35 U.S.C. § 134(a), Appellant[1] appeals from the Examiner's decision to reject claims 23-28, 30-35, 44, 45, 47, 48, and 50. We have jurisdiction. 35 U.S.C. § 6(b). An oral hearing was held on January 9, 2024, the transcript of which will be entered into the record when it is available.
We reverse.
The claims are directed to purported "novel fertilizer compositions and methods capable of delivering micronutrients over an extended period of time so that they are available throughout the growth cycle of a plant." Spec. 1:12-14.
Claim 23 is illustrative of the claimed subject matter and is reproduced below with the key limitation on appeal italicized:
Name
Reference
Date
Marks
US 2009/0038355 A1
February 12,2009
Knochenmus
US 2011/0152363 A1
June 23, 2011
Lamb
US 2015/0299058 A1
October 22,2015
Wheeler
US 2016/0229763 A1
August 11,2016
Zhu
CN105746559 A[2]
July 13, 2016
Firebrake® ZB MSDS (“Firebrake®”)
2006
REJECTIONS
The Examiner maintains the following rejections on appeal:
Claims Rejected
Reference(s) / Basis
23-28, 30-33
103
Lamb, Knochenmus
34, 35
103
Lamb, Knochenmus, Marks
44, 45, 47, 48, 50
103
Zhu, Firebrake®, Wheeler
The dispositive issue for each rejection is whether the Examiner has established sufficiently that it would have been obvious to prepare the claimed fertilizer compositions "in the form of a powder [] wherein the average particle size is less than about 170 urn for at least about 50% of the particles in the fertilizer composition."[3] Because the Examiner has failed to do so on this record, we do not sustain the appealed rejections. Our reasoning follows.
In the Examiner's rejection of claim 23, the Examiner relies on Knochenmus' disclosure of milling a fertilizer composition and then screening it through a 70 mesh filter, which the Examiner finds is equivalent to 212 urn Non-Final Act.[4] 3-4. The Examiner finds that the claimed particle size range overlaps with Knochenmus' particles that filter through the 70 mesh screen. Id. at 4. We disagree.
Knochenmus' particles are milled to a certain size and then screened through a filter size of 70 mesh or 212 urn Knochenmus ¶ 44. Thus, the prior art milled particles that are larger than 212 urn remain on the screen, and the particles less than or equal to 212 urn pass through. Although it is possible that some of Knochenmus' milled and filtered particles may be less than 170 urn, there is insufficient evidence on this record that "at least about 50%" of Knochenmus' particles meet that criteria. For example, depending on the milling technique employed by Knochenmus, more than half of the screened particles may be between 170urn and 212um.[5] In view of this, the Examiner's rejections of claims 23-28 and 30-35 cannot be sustained.
The Examiner's rejection of independent claims 44 and 50 is also deficient with respect to the claimed percentage of powder having a particle size less than about 170 urn. For this rejection, the Examiner relies on Zhu's teaching of a "nano-carbon powder" to evince this limitation and determines that it would have been obvious "to formulate a powder formulation with a uniform particle size distribution within a nano-sized range (e.g., 100 urn or less) and within the claimed range" based on the teachings of Wheeler regarding avoiding the segregation of different particle sizes. Non-Final Act. 6-7. The rejection is deficient, however, because it does not take into account the full scope of Wheeler's teachings. Wheeler discloses that "[a] granule with a coating . . . reduces segregation of nutrients thereby allowing even distribution or application of all nutrients and compounds included in the fertilizer." Wheeler ¶ 9 (emphasis added). Thus, Wheeler does not teach or suggest milling a fertilizer composition to match the size of the smallest component as suggested by the rejection. See Non-Final Act. 6-7 (determining that it would have been obvious to mill Zhu's fertilizer composition to be the same particle size as Zhu's nano-carbon powder).
Rather, Wheeler recognizes the segregation problem and purports to reduce particle segregation by coating the particles. Wheeler ¶ 9.
We emphasize here that Zhu's nano-carbon powder constitutes a very small fraction of the overall composition because the nano-carbon powder is 1-5 parts of the soil conditioner which is itself only 5-10 parts of the fertilizer composition Zhu, 3. The Examiner points to no teaching on this record that suggests that the entirety of a fertilizer composition should be milled to have the particle size of a component making up such a small percentage of the overall composition.
In view of these deficiencies, we do not sustain the Examiner's rejection of claims 44, 45, 47, 48, and 50.
The Examiner's rejections are reversed.
DECISION SUMMARY
Claim(s) Rejected
Reference(s)/ Basis
Affirmed
Reversed
23-28, 30-33
103
Lamb, Knochenmus
23-28, 30-33
34, 35
103
Lamb, Knochenmus, Marks
34, 35
44, 45, 47, 48, 50
103
Zhu, Firebrake®, Wheeler
44, 45, 47, 48, 50
Overall Outcome
23-28, 30-35, 44, 45, 47, 48, 50
REVERSED
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[1] "Appellant" refers to "applicant" as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Koch Agronomic Services, LLC, a wholly-owned subsidiary of Koch Ag and Energy Solutions, LLC, which is a wholly-owned, indirect subsidiary of Koch Industries, Inc. Appeal ...
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