Ex Parte Arias

Board of Patent Appeals and Interferences

Jan 30, 2002

09024413 (B.P.A.I. Jan. 30, 2002)

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The opinion in support of the decision being entered
today was not written for publication in a law journal
and is not binding precedent of the Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte JAIME A. ARIAS

Appeal No. 2000-0012
Application No. 09/024,413

ON BRIEF

Before KIMLIN, GARRIS and KRATZ, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-9.
Claim 1 is illustrative:
1. A method for removing copper or other metal from
sulphide ore without adding gaseous oxygen to the ore and without
producing NOx gases, said method comprising the steps of:
crushing said ore to <6 mm;
treating said ore with concentrated sulphuric acid to
agglomerate fine particles and to impregnate the ore with acid;
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Application No. 09/024,413
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stacking the treated ore in a heap less than twelve meters
high;
irrigating said heap with a dilute aqueous solution
consisting essentially of sulphuric acid and sodium nitrate to
produce a leach product, whereby said sodium nitrate is consumed
in the production of the leach product;
collecting said leach product from said heap; and
recovering metal from said leach product by electrolysis to
produce a depleted leach product.
The examiner relies upon the following references as
evidence of obviousness:
Stetefeldt 287,787 Oct. 30, 1883
(Patent Specification)
Mackay 1,737,425 Nov. 26, 1929
Keyes 2,009,667 Jul. 30, 1935
Abell et al. (Abell) 3,269,832 Aug. 30, 1966
Carnahan et al. (Carnahan) 3,912,330 Oct. 14, 1975
Kintaichi et al. (Kintaichi) 5,336,476 Aug. 9, 1994
Altaev et al. (SU '761) SU 1581761 Jul. 30, 1990
(Soviet Union Inventor's Certificate)
Appellant's claimed invention is directed to a method for
removing metal, such as copper, from sulphide ore without adding
gaseous oxygen and without producing NOx gases. The method
involves agglomerating crushed ore by treating with concentrated
sulphuric acid and stacking the ore in what is known in the art
as a heap. The heap is irrigated with a dilute aqueous solution
of sulphuric acid and sodium nitrate which produces a leach
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Application No. 09/024,413
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product and consumes the sodium nitrate. The metal is recovered
from the leach product by electrolysis.
Appealed claims 1-9 stand rejected under 35 U.S.C. § 103 as
being unpatentable over SU '761 in view of Abell, Keyes,
Stetefeldt, Mackay, Carnahan and Kintaichi.
Appellant submits at page 4 of the Brief that "[c]laims 1,
4, and 5 stand or fall together." Also, appellant groups the
remaining appealed claims as follows: (a) claim 2; (b) claim 3;
(c) claims 6, 7 and 9; and (d) claim 8.
Upon thorough review of the positions espoused by appellant
and the examiner, we find ourselves in complete agreement with
the examiner that the subject matter of appealed claims 1-5 would
have been obvious to one of ordinary skill in the art within the
meaning of § 103 in view of the applied prior art. Accordingly,
in sustaining the examiner's rejection of claims 1-5, we will
adopt the examiner's reasoning as set forth in the Answer.
SU '761 discloses a method, like appellant's, for removing
copper from ore without adding gaseous oxygen which comprises the
claimed steps of crushing the ore to less than 6 mm, treating the
ore with concentrated sulphuric acid, stacking the ore in a heap,
and then leaching the heap. SU '761 does not disclose the
leaching composition. However, based on the prior art cited by
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Application No. 09/024,413
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the examiner, we are confident that it would have been obvious
for one of ordinary skill in the art to employ appellant's dilute
aqueous solution of sulphuric acid and sodium nitrate as the
leaching composition in the method of SU '761. As shown by the
examiner, Abell and Keyes disclose leaching copper from ore by
using a solution of sulphuric acid, while Stetefeldt and Carnahan
discloses the use of an aqueous solution of sulphuric acid and
sodium nitrate to leach copper from its ore. Indeed, Carnahan
teaches that the nitrate is added for the same reason presently
claimed by appellant, i.e., to speed the dissolution of the
copper (see claim 9 on appeal). As for the claimed recitation of
performing the method without producing NOx gases, we agree with
the examiner that one of ordinary skill in the art would have
been motivated to use the catalytic, stoichiometric amounts of
nitrate disclosed by Carnahan for the obvious purpose of
eliminating the generation of noxious gases.
Regarding the claimed step of treating the ore with
concentrated sulphuric acid to agglomerate the fine particles, we
find that the method of SU '761 of treating the crushed ore
having a size less than 6 mm with concentrated sulphuric acid
would necessarily agglomerate the particles before the leaching
step. We also agree with the examiner that it is of no moment
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Application No. 09/024,413
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that Abell discloses, as urged by appellant, that the water
constituent of the solution of sulphuric acid agglomerates the
ore. Clearly, the claimed treatment with concentrated sulphuric
acid also subjects the particles to water.
Concerning the disclosure of Stetefeldt, appellant maintains
that "[i]t is not seen how building a tower to contain fumes
would lead one of ordinary skill in the art to use a dilute
aqueous solution of sulphuric acid and sodium nitrate to
eliminate the emission of NOx fumes from a heap" (page 6 of
Brief, penultimate sentence). Certainly, Stetefeldt, an old
reference dating back to 1883, does not teach using a dilute
solution of sulphuric acid and sodium nitrate, but was cited by
the examiner to firmly establish that it was old in the art to
leach copper from its ore by utilizing an aqueous solution of
sulphuric acid and sodium nitrate. The motivation to use a
dilute solution emanates from Carnahan, as explained above.
Appellant also maintains at page 6 of the Brief that Keyes
teaches away from heap leaching. However, we agree with the
examiner that there is no meaningful distinction between the
claimed step of stacking the treated ore in a heap and Keyes'
disclosure of forming the agglomerated ore in a heap enclosed by
a tank.
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Application No. 09/024,413
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Appellant also points out that "[t]he Carnahan patent also
discloses using sodium nitrate as a catalyst" (page 7 of Brief,
paragraph 2). We concur with the examiner, however, that
Carnahan's use of the term "catalyst" in describing sodium
nitrate is in keeping with the small amount used. Manifestly,
Carnahan's description of the reaction between the nitrate ion
with the sulphide moiety of a copper-iron sulphide belies the
meaning of the term "catalyst" in its classical sense. As
discussed above, Carnahan teaches the use of sodium nitrate for
the same purpose recited in claim 9 on appeal, namely, to speed
the dissolution of copper from the ore. Also, appealed claim 1
does not preclude the sodium nitrate as functioning as a
catalyst.
We now turn to the examiner's rejection of claims 6, 7
and 9, as a group, and claim 8. Appellant presents the separate
argument at page 8 of the Brief that "[c]laims 6, 7, and 9 each
distinguish over the prior art in the recitation of the
conditioning step." In fact, claim 9 recites no such step. Only
claims 6 and 7 specify a conditioning step. However, although
appellant states that the conditioning step "is not addressed in
the Examiner's final rejection" (page 8 of Brief, penultimate
paragraph), the examiner has not offered a response to
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Application No. 09/024,413
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appellant's argument. The same scenario also applies to the
examiner's rejection of claim 8, which recites adding sodium
sulphate in order to buffer the oxidizing action of the nitrate.
Accordingly, we are constrained to reverse the examiner's
rejection of claims 6, 7 and 8. We will sustain the examiner's
rejection of claim 9 because, as explained above, Carnahan
expressly teaches adding sodium nitrate to the dilute aqueous
solution of sulphuric acid in order to speed the dissolution of
copper from the ore.
In conclusion, based on the foregoing, the examiner's
rejection of claims 1-5 and 9 under 35 U.S.C. § 103 is affirmed.
The examiner's rejection of claims 6-8 is reversed. In addition,
since it is not clear on this record that the examiner has
examined the limitations of claims 6-8, this application is
remanded to the examiner to consider whether claims 6-8 should be
rejected under any of the patent statutes.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
This application, by virtue of its "special" status,
requires immediate action by the examiner. See the Manual of
Patent Examining Procedure, § 708.01(D) (8th ed., Aug. 2001). It
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Application No. 09/024,413
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is important that the Board of Patent Appeals and Interferences
be informed promptly of any action affecting the appeal in this
case.
AFFIRMED-IN-PART AND REMANDED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
)
BRADLEY R. GARRIS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
PETER F. KRATZ )
Administrative Patent Judge )
ECK:clm
Appeal No. 2000-0012
Application No. 09/024,413
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Paul F. Wille
FENNEMORE CRAIG
3003 North Central Ave.
Suite 2600
Phoenix, AZ 85012-2913