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                       COMMISSIONER'S DECISION

 

Obviousness: Leaching of Subterranean Mineral Deposits

 

Explosive Fracturing of a deep rock ore body is known. Injection of the leaching

solution in the less severely fractured zone and recovering it in the more

severely fractured zone is not shown in the prior art.

 

Rejection: Reversed

 

                          **************

 

This decision deals with the refusal of claims C1 to C18 of patent

application 205,542 (Class 166-23). The refusal appears in a letter dated

April 7, 1978, issued as a result of a re-examination of the claims under

Section 45(4) of the Patent Act, i.e. during conflict proceedings.

 

The application was filed on July 24, 1974 by E.I. Du Pont de Nemours and

Company, and is entitled "Explosive Fracturing of Deep Rock." The Patent

Appeal Board held a Hearing on October 25, 1978 at which Mr. R.E. Vernon

and Mr. A. Brooks, the inventor Mr. Coursen, and Miss C. Asconci, the

applicant's United States agent, represented the applicant.

 

The invention relates to the leaching of subterranean mineral deposits

in the earth. A network of underground rock fractures produced by

means of explosives prepares the ore bodies for in situ leaching. Figures

1 and 2 of the drawings indicate what the invention is about.

 

                        (see formula 1)

 Claims C1 to C18 stand rejected in view of the following references;

 

 United States

 

 3,278,233                Oct. 11, 1966              Hurd et al

 3,542,131                Nov. 24, 1970              Walton

 3,574,599                Apr. 13, 1971              Ortloff et al

 3,630,278                Dec. 28, 1971               Parker

 3,640,579                Feb.  8,  1972              Lewis

 3,647,261                Mar.  7,  1972               Stenger et al

 3,666,014                May  30, 1972               Beard

 

 In the rejection it was said, inter alia, that:

 

 The Beard patent shows the use of a high energy explosive device

 in the formation of a zone of high permeability, and the creation

 of a "chimney" or rubbled zone. A zone of permeability 17 within

 and around the fragmented formation is formed surrounding the

 chimney. When used throughout the specification (3,666,014), the

 terms "fragmented zone" and "fragmented zone of rubble" refer

 to the rubbled zone 15 or any other rubbled or fracture-permeated

 zone formed by any means well known in the art. The patent also

 teaches the injection of a gas (fluid) into the fragmented zone.

 

The Stenger et al patent teaches solution mining of a metal.

 The patent teaches, in column 2 at line 6, that "Permeability

 may also be improved by underground fracturing techniques, such

 as are employed in the oil industry, although it is desirable

 that the brine pass through the ore itself rather than through

 cracks in the ore".

 

 The Ortloff et al patent teaches a recovery method for the

 in situ disintegration of a solid material comprising an in situ

 conversion of the solid material to a fluid solution by chemical

 conversion. In column 3 at lines 21 to 28 there is discussed

 a procedure if insufficient permeability exists to establish

 fluid permeability in the deposit and the residence time of

 the leach solution which can be controlled by the rates of

 injection and withdrawal of the solution.

 

 The Hurd et al patent teaches that the permeability may be

 increased by suitable means, such as hydraulic fracturing in

 the in situ leaching of deposits.

 

 The Lewis patent teaches the use of an oxidizing gas which is

 percolated through the broken ore and oxidizes the minerals to

 form an acid leach solution in the reaction.

 

 The Walton patent teaches the use of explosives to form cavities

 and to provide a fractured and cracked permeable zone.

 

 The Parker patent teaches the placing of the input well around

 the periphery of the fractures extending out from the fragmentation

 zone.

 

The Stenger et al patent teaches that techniques common in

the oil industry can be used in the solution mining of minerals

and hence, it must be concluded that such techniques would

be considered to be obvious to one working in the mineral

recovery art. It has been well established that a claim may

be struck down on the ground of lack of an inventive step

if it can be shown that it covers a variation of an individual

prior proposal, which variation it would be obvious to make

in the light of the relevant common general knowledge.

 

The patents to Ortloff et al, Stenger et al, Hurd et al, and

Lewis can be classed as belonging to the mineral leaching

aspect, whereas the Parker, Walton and Beard patents show

techniques that are used in the oil industry which are applicable

to the mineral recovery industry, and in particular the placing

of the injection wells outside the rubblized zone which is

taught in the Parker and Beard patents.

 

Therefore claims C1 to C18 are rejected on the Ortloff et al,

Stenger et al, Hurd et al and Lewis patents when taken in

view of what is taught in the Parker, Walton and Beard patents.

The first group of patents teaches the leaching of minerals

in situ and such variations as are being claimed are considered

to be obvious variations when taken in the light of the

relevant common general knowledge as exemplified by the

patents to Parker, Walton and Beard.

 

...

 

In his response dated July 6, 1978 the applicant stated (in part):

 

...

 

In addition, Applicant does not agree with the assertion that

the invention of claims C1 to C18 is an obvious variation of

the techniques of solution recovery of mineral values as disclosed

by Hurd et al in U.S, patent 3278233, Ortloff et al in U.S.

patent 3574599, Lewis in U.S. patent 3640579 and Stenger et al

in U.S. patent 3647261 in view of the teachings of Beard in U.S.

patent 3666014, Walton and Parker.

 

In all of claims C1 to C18 a leach solution is injected into

a less severely fractured zone in an ore body, which surrounds

a more severely fractured zone in the ore body, and pregnant

leach solution is recovered from the more severely fractured

zone of the ore body.

 

It is respectfully submitted that none of the cited references

teach or suggest the specific direction of flow of the leach

solution from the less severely to the more severely fractured

zone in accordance with the invention of claims C1 to C18.

 

The Hurd et al, the Stenger et al, and the Ortloff et al

references indicate that permeability of the ore body may be

increased by fracturing the ore body, but no indication is

given that the presence or location of both more and less

severely fractured zones is of any importance in relation to

maintaining the flow of leach solution.

 

The discussions by Ortloff et al and Stenger et al about

increasing the permeability of natural subterranean form-

ations is somewhat vague, giving no inkling of any benefits

of particular fracture patterns or of particular flow

directions of leach solution.

 

It is clear that Hurd et al recognized the difficulties of

maintaining the flow of mineral-pregnant solution resulting

from the formation of impermeable precipitated plugs in the

ore body. There is no indication, however, that increasing

the permeability of the ore body by fracturing minimized

these difficulties, or that any particular type of fracturing

or direction of flow of leach solution was more beneficial

than any other.

 

It is not clear therefore, how the Hurd et al, Stenger et al,

or the Ortloff et al disclosures taken singly, or in view of

actual common general knowledge, provides any insight into the

solution recovery process of the present invention.

 

Lewis discloses percolation of a gas through the highly

fractured zone of a so-called nuclear chimney which is flooded

with water. In the invention of Lewis the gas is injected into

a lower portion of the highly fractured zone and mineral-

pregnant solution is withdrawn from the upper portion of the

highly fractured zone i.e. both injection and recovery takes

place within the highly fractured zone. It should be noted

that the fractures in the highly fractured zone in a nuclear

chimney is essentially uniform. This is quite different to

the invention of present claims C1 to C18, which makes use of

more and less severely fractured zones.

 

...

 

At the Hearing and in his response to the letter Mr. Vernon questioned the

involvement of the Patent Appeal Board at this point in the conflict proceed-

ings. In addition he also questioned the grounds of rejection and presented

his interpretation on the manner in which art submitted during a Section

45(4) situation may be applied. However Section 45(4) of the Patent Act states

that the Commissioner shall decide if the subject matter of conflict claims

is patentable. If the Commissioner wishes to obtain the assistance of the

Board in making that decision, he is fully entitled to do so (cf. Monsanto v

Commissioner of Patents, F.C.A., June 24, 1977). Furthermore the applicant

himself requested an oral hearing before the Board (letter of June 6, 1978),

and consequently estopped by his own deed from objecting to its involve-

ment.

 

Claims C1 to C18 were rejected on prior art in the Commissioners letter

dated April 7, 1978. As we have indicated earlier Section 45(4) states

that the Commissioner shall decide if the subject matter of such claims is

patentable and the question before us is whether or not the conflict claims

are patentable over the art.

 

Mr. Coursen, the inventor, outlined the history of leaching subterranean

deposits and the associated problems. This application increases the network

of fractures in an ore body by detonating an explosive charge and the sub-

sequent introduction of a lixiviant.

 

Initially the leaching process will cause the heavily shocked rock near the

shot point to decrepitate to fines at a particularly high rate. In time

the chemical attack on the rock by the leaching solution will generate further

fines as well as slimes. The problem that this application is designated

to overcome is the loss of fracture permeability and the plugging of fractures

caused by the presence and production of these various kinds of fines and

their movement during leaching. Accordingly this application directs

the lixiviant flow from less severely fracture zone having small perforations

to the more severely fractured zone with its larger perforations thereby

preventing clogging by the fines and slimes.

 

Considering the prior art we find that Ortloff shows a method of leaching

copper ore in situ. In this process a well extending from the earth's surface

to the deposit allows a leach solution to be injected to react with the ore.

A second well serves to recover the pregnant leachant. In this patent the

ore is normally used in its natural condition although Ortloff recognized that

it may be necessary to increase permeability ".., by means known to those

skilled in the art of fracturing subterranean formations...." We find no

further indication how permeability can be increased nor do we find any

problem relating to the plugging of fractures with fines or the direction

of fluid flow.

 

 Stenger also leaches metal values from underground ores by injecting a brine

 in one well in the ore body and then collecting the reacted brine in another

 well in the ore body. As in Ortloff the ore is used in its natural

condition (no detonation) and there is no mention of fines and slimes. He

recognized that permeability may be improved "... by underground fracturing

techniques such as employed in the oil industry although it is desirable that

the brine pass through the ore itself rather than through the cracks of

the ore...." There is no further description on how the techniques common

to the oil industry can be applicable to increase permeability for leaching

of minerals but it appears that Stenger recognizes that the brine flow

for leaching should be through the ore itself rather than through the cracks

as for oil recovery.

 

Hurd uses a gaseous leaching solvent for in situ mining of subterranean

deposits. An acidic gas is passed into the ore deposit whereby the metallic

ions are made soluble in previously-added water, wetting the ore. This solution

is then recovered by water flooding. Here,as in Ortloff,and Stenger the ore

is used in its natural state so there is no great alteration of fracture zones

to contend with.

 

Lewis relates to a leaching method where a nuclear chimney located below water

table in a primary ore deposit serves as an in situ pressure vessel. He

introduces compressed oxidizing gas and lixiviant into the base of the rubble

chimney and recovers pregnant solution at the top of the rubble chimney.

Since both injection and recovery are in the rubble zone which is of

infinite permeability there would be no problem with clogging by the fines.

 

Parker relates to the in situ production of oil from oil shale by pyrolysis

with hot gases. Permeability of the shale around a nuclear produced chimney

is increased before retorting by pyrolyzing and melting the surface of the

fractures at a temperature of 1400 - 2000øF achieved by reverse combustion.

Oxygen is injected in wells at the periphery of the fractures extending out

from the fragmentation zone. This injected pressurized oxygen moves to the

chimney where reverse combustion takes place. The surfaces of the fractures

are melted to a slag which is left in place.

 

Walton discloses a method of recovering hydrocarbons from an oil shale

formation by in situ retorting.

 

Beard is for a method of recovering oil from a subterranean oil shale formation

by circulating a hot extractive fluid between two wells in an explosively

produced chimney in an oil shale formation.

 

None of the citations before us, which relate to the in situ recovery of hydro-

carbons from oil shale deposits, indicate any problem with flow restriction

due to the formation of fines or slimes. We believe the type of physical

reaction found in the recovery of oil from oil shale to be different from

that of the solvent reaction in the leaching recovery for mineral deposits.

It would appear that the reaction for leaching minerals will tend to produce

fines and slimes which would restrict lixiviant flow whereas the recovery of

oil from oil shale will not be subject to this additional factor of flow

restriction.

 

In the cited leaching patents to Ortloff,Stenger and Hurd the ore is not fractured

so they are not faced with the problem of fines restricting flow as is the case

in this application. Further the Lewis citation only utilizes the highly

rubblized zone of the nuclear chimney which will not cause any problem with

respect of fine clogging.

 

       The applicant produces a fracture network in a deep rock ore body and injects

       his leaching solution in the less severely fractured zone and recovers it in

       the more severely fractured zone. There is no doubt that this type of flow

       will tend to overcome the loss of fracture permeability caused by the

       formation of fines and slimes during their leaching movement. We are satisfied

       that there is present an indication of thought, design and a degree of

       ingenuity which. in our view, constitutes a patentable advance in the art.

 

       We will now consider the claims. Claim C9 is as follows:

 

A process for the in situ leaching of an ore body which has been

       worked by detonating explosive charges in separate cavities therein

       to produce in the ore body immediately adjacent to the site of

       each detonation a fracture zone comprised of a most severely

       fractured core portion surrounded by a less severely fractured

       outer portion, comprising introducing lixiviant for the ore

       into the ore body through a plurality of injection holes in the

       less severely fractured portions and recovering pregnant leach

       solution from the ore body through a plurality of recovery

       holes in the most severely fractured portions.

 

       The feature of introducing the lixiviant in the less severely fractured portion

       and recovering the leach solution in the most severely fractured portion is

       found in the claim. We consider this to define the scope of monopoly of the

       invention commensurate with what we find is the invention described in the

       specification taking into consideration what is taught by the cumulative

       effect of the cited art.

 

       We also find these features in the remainder of the conflict claims and they

       too are considered allowable.

 

       To summarize, we are satisfied that the conflict claims represent a patentable

       advance in the art and we recommend that the decision of the examiner to

       refuse claims C1 to C18 be withdrawn.

 

       G. Asher                           S. Kot

       Chairman                             Member

       Patent Appeal Board, Canada

 

I concur with the findings of the Patent Appeal Board and return the

application to the examiner for the resumption of prosecution.

 

J.H.A. Gariepy

Commissioner of Patents

 

Dated at Hull, Quebec

this 15th day of January, 1979

 

Agent for Applicant

McCallum, Brooks & Co.

Box 660

Montreal, Que.

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