Ex Parte Legario et al

Patent Trial and Appeal Board

Jun 13, 2013

10646930 (P.T.A.B. Jun. 13, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/646,930 08/25/2003 Ron Robeniol Legario 6826-195 1597
1059 7590 06/13/2013
BERESKIN & PARR LLP/S.E.N.C.R.L., s.r.l.
40 KING STREET WEST
40th Floor
TORONTO, ON M5H 3Y2
CANADA
EXAMINER
FELTON, AILEEN BAKER
ART UNIT PAPER NUMBER
1734
MAIL DATE DELIVERY MODE
06/13/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte RON ROBENIOL LEGARIO
and IVANA ALILOVIC
________________

Appeal 2012-002477
Application 10/646,930
Technology Center 1700
________________

Before BRADLEY R. GARRIS, TERRY J. OWENS, and
GRACE KARAFFA OBERMANN, Administrative Patent Judges.

Per Curiam.

DECISION ON APPEAL

Appeal 2012-002477
Application 10/646,930

2

STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection1 of claims 31-33, 35, 36, 38-44, 48, 49, 51, and 53-56. We have
jurisdiction under 35 U.S.C. § 6(b).
For the reasons set forth below, we REVERSE.
The Invention
The Appellants claim a method of making and using an ammonium
nitrate fuel oil (ANFO) explosive composition that reduces oil segregation.
Claim 31 is representative of the application’s claims and is reproduced
here:
31. A method for reducing oil segregation in an ANFO explosive
composition and using the ANFO explosive composition, comprising:
a) providing an ANFO explosive suitable organic combustible fuel,
inorganic oxidizer particles comprising ammonium nitrate particles and a
chemical coupling agent having a long chain aliphatic portion and an epoxy
group;
b) combining the organic combustible fuel and the chemical coupling
agent to produce a liquid mixture and then combining the liquid mixture
with the inorganic oxidizer particles to produce a flowable ANFO explosive
consisting of organic oxidizer particles coated with the liquid mixture and
one or more conventional additives;
c) placing the flowable ANFO explosive in a borehole; and,
d) maintaining the ANFO explosive as flowable until detonation.

1 The Examiner’s Answer indicates that claim 36 is both rejected and
withdrawn from consideration (Ans. 3). Claim 46, not claim 36, has been
withdrawn.
Appeal 2012-002477
Application 10/646,930

3
The References
Baker US 4,595,430 Jun. 17, 1986
Kelley US 5,527,498 Jun. 18, 1996
Richard US 6,113,714 Sep. 5, 2000
The Rejections
Claims 31-33, 35, 36, 38, 43, 44, 48, 49, 51, 53, and 56 stand rejected2
under 35 U.S.C. § 103(a) as being unpatentable over Kelley in view of
Baker (Ans. 4-5).
Claims 39-42, 54, and 55 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kelley in view of Baker and Richard (Ans. 5).
OPINION
The rejection of dependent claims 39-42, 54, and 55 does not rely
upon Richard for any disclosure that remedies the deficiencies of Kelley and
Baker. We therefore need to address only the sole independent claim, i.e.
claim 31.
Ammonium nitrate is typically mixed with a carbonaceous fuel oil to
make a detonatable mixture (Spec. ¶ [0002]). Higher density ammonium
nitrate particles produce a higher detonation pressure but have lower oil
adsorption which may result in oil separating from the ammonium nitrate
(Spec. ¶¶ [0004]-[0005]). The Appellants reduce this separation by using a
chemical coupling agent having a non-polar aliphatic portion that associates
with the combustible fuel and a polar portion containing an epoxy group that
associates with the oxidizer (ammonium nitrate) (Spec. ¶¶ [0007]-[0008]).
Kelley describes a method of providing oil-absorbent high density
ammonium nitrate prills (col. 2, ll. 43-45) that are useful in ANFO

2 Claim 32 is inadvertently omitted from the statement of rejection (Ans. 4).
Appeal 2012-002477
Application 10/646,930

4
explosives (col. 2, l. 45; col. 6, l. 40 to col. 7, l. 9). Kelley fails to describe
the recited chemical coupling agent having a long chain aliphatic portion and
an epoxy group.
Baker describes desensitized dynamites comprising a desensitizing
compound (abstract). Baker discloses that dynamite is hazardous due to its
sensitivity to impulses such as impact, explosion, fire, or friction (col. 1, ll.
21-27 and 42-44). Baker discloses that ANFO has become common because
it is relatively insensitive to detonation except by use of a booster charge
(col. 1, ll. 27-31) but that dynamite has reliability and energy advantages
over ANFO (col. 1, ll. 38-41). Baker discloses many desensitizer compounds
(compounds 1-24 in Table II in col. 9-10), one of which is epoxidized
soybean oil (compound 7), which is one of the Appellants’ coupling agents
(Spec. ¶ [0063]). The Examiner argues that it would have been obvious to
use epoxidized soybean oil in the ANFO explosives of Kelley because it was
a known additive in “ANFO-type” compositions (Ans. 4-5).
The Appellants argue that Baker is drawn to dynamites rather than to
ANFO explosives (Br. 7) and that Baker distinguishes dynamites from
ANFO explosives (Br. 9). In response, the Examiner argues that the recited
term “ANFO” does not exclude any additional components that are present
in the dynamite compositions of Baker (Ans. 6). While both ANFO and
dynamite compositions may contain ammonium nitrate and a fuel oil, Baker
makes a distinction between dynamites and ANFO explosives (col. 1, ll. 27-
42) and the Examiner has not established that the term “ANFO”
encompasses explosives containing the further ingredients that are present in
Appeal 2012-002477
Application 10/646,930

5
dynamite compositions. Therefore, the Examiner has not established that
Baker’s dynamite compositions are “ANFO-type” compositions.
The Appellants further argue that because the desensitizing
compounds of Baker are used to prevent accidental initiation of dynamite
and ANFO does not have the same accidental initiation problems, a person
of ordinary skill in the art would not have been motivated to use the
desensitizing compounds of Baker in the ANFO explosives of Kelley
(Br. 9). Baker discloses that ANFO is relatively insensitive to detonation
except by the use of a booster charge, and thus Baker suggests that ANFO
compositions would not need the desensitizing compounds that are used in
the dynamite compositions. The Examiner has not established that the
person of ordinary skill would have been motivated to use the dynamite-
desensitizing compounds of Baker in the ANFO explosives of Kelley.
We therefore reverse the rejections.
DECISION/ORDER
The rejection of claims 31-33, 35, 36, 38, 43, 44, 48, 49, 51, 53, and
56 under 35 U.S.C. § 103(a) as being unpatentable over Kelley in view of
Baker is REVERSED.
The rejection of claims 39-42, 54, and 55 under 35 U.S.C. § 103(a) as
being unpatentable over Kelley in view of Baker and Richard is
REVERSED.
It is ordered that the Examiner’s decision is REVERSED.
REVERSED

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