The Mosaic Company

Patent Trials and Appeals Board

Jul 31, 2020

15050659 - (D) (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

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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.
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Application 15/050,659

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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

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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

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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.
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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
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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.
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Application 15/050,659

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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