FREEPORT MINERALS CORPORATION

Patent Trials and Appeals Board

Mar 25, 2020

14106165 - (D) (P.T.A.B. Mar. 25, 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.
14/106,165 12/13/2013 Martin Brueggemann 97112.09400 6428
83566 7590 03/25/2020
Snell & Wilmer LLP (FREEPORT)
One Arizona Center
400 E Van Buren Street
Phoenix, AZ 85004-2202
EXAMINER
WANG, NICHOLAS A
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
03/25/2020 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):
chauff@swlaw.com
ipdocket@swlaw.com
matanacio@swlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN BRUEGGEMANN, PAUL RICHARD COOK,
TAMARA BUTLER JOHNDROW, YI ZHU, and
LARRY ROBERT TODD

Appeal 2019-003316
Application 14/106,165
Technology Center 1700
Before DONNA M. PRAISS, BRIAN D. RANGE, and JANE E. INGLESE,
Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1, 3, 4, and 6.1 We have jurisdiction
under 35 U.S.C. § 6(b). We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Freeport Minerals Corporation as the real
party in interest. Appeal Br. 2.
Appeal 2019-003316
Application 14/106,165

2
CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to systems and methods
for improving the drainage of leach through a leach stockpile in a heap leach
operation. Spec. ¶ 10. In particular, metal may be extracted from metal-
bearing substances by crushing the substance and then leaching the
substance with an aqueous leach solution. Id. ¶ 2. It is desirable to have good
flow of the leach solution through the substance so that localized areas of
low permeability are avoided and so that air is available to allow an
appropriate reaction. Id. ¶¶ 6–9. Claim 1 is the only independent claim on
appeal and is illustrative:
1. A process comprising:

identifying a zone of low solution permeability within a
leach stockpile after applying a leaching solution to the leach
stockpile; and

placing a wick drain across the zone of low solution
permeability, wherein the wick drain comprises a proximal
terminus and a distal terminus, and wherein the wick drain is
disposed to place the proximal terminus of the wick drain on a
first side of the zone of low solution permeability and the distal
terminus of the wick drain on an opposite side of the zone of
low solution permeability.
Appeal Br. 14 (Claims App.).

2 In this Decision, we refer to the Final Office Action mailed April 23, 2018
(“Final Act.”); the Appeal Brief filed October 11, 2018 (“Appeal Br.”); and
the Examiner’s Answer mailed January 25, 2019 (“Ans.”).
Appeal 2019-003316
Application 14/106,165

3
REJECTION AND REFERENCES
On appeal, the Examiner maintains the rejection of claims 1, 3, 4, and
6 under 35 U.S.C. § 103 as obvious over Cramer, (US 2014/0367899 A1;
pub. Dec. 18, 2014) (“Cramer”), in view of Seal, (US 8,021,461 B2; iss.
Sept. 20, 2011) (“Seal”). Ans. 3. As a second ground of rejection, the
Examiner also maintains the rejection of claims 1, 3, 4, and 6 under 35
U.S.C. § 103 as obvious over Seal in view of Cramer. Id. at 5.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011))
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the [E]xaminer’s rejections.”). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
not persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner’s rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
The Appellant does not separately argue any dependent claims. We
therefore limit our discussion to claim 1. All other claims stand or fall with
that claim. 37 C.F.R. § 41.37(c)(1)(iv) (2013).
For the first rejection, the Examiner rejects claim 1 as obvious over
Cramer in view of Seal. Ans. 3. The Examiner finds that Cramer teaches a
vertical drainage system for heap leaching operations where conduits drain
accumulated solution. Id. (citing Cramer). The Examiner finds that Cramer’s
teaching of solution build up would naturally be due to low solution
Appeal 2019-003316
Application 14/106,165

4
permeability areas. Id. The Examiner finds that a drain length along the
entire tailings pile “will naturally be oriented across at least a zone of low
permeability having its respective ends on either side of a low permeability
zone within said tailings pile.” Id. at 4.
The Examiner further finds that Seal teaches surveying a leach
stockpile to determine areas that are deficient in metal extraction due to
reduced permeability. Id. (citing Seal). The Examiner also finds that Seal
teaches drilling into such areas for remedial treatment by hydraulic
fracturing. Id. at 4–5. The Examiner determines that it would have been
obvious to modify Cramer to include identification of low permeability
zones in order to improve heap extraction. Id. at 4.
For the second rejection, the Examiner rejects claim 1 as obvious over
Seal in view of Cramer. Ans. 5–7. The Examiner’s findings are similar. The
Examiner determines that it would have been obvious to modify the method
of Seal by utilizing the wicking conduits disclosed by Cramer rather than the
hydraulic fracturing of Seal to improve metal extraction “such that slope
failure of the heap pile can be avoided, as taught by Cramer.” Id. at 6. The
Examiner, in the alternative, determines that it would have been obvious to
replace the hydraulic fracturing of Seal with the wicking conduit of Cramer
as a mere substitution. Id.
Appellant presents the same arguments for both rejections. Appeal
Br. 12. Appellant argues that neither reference teaches identifying low
permeability zones and then placing a wick drain across a low permeability
zone such that, as recited by claim 1, the proximal terminus of the wick
drain is placed on one side of the zone of low solution of permeability and
the distal terminus is placed on an opposite side of the zone of low
Appeal 2019-003316
Application 14/106,165

5
permeability. Id. at 8. We begin our assessment of Appellant’s arguments
with claim construction.
Claim 1 recites “identifying a zone of low solution permeability
within a leach stockpile.” Appeal Br. 14 (Claims App.). We adopt the
explicit definition of “zone of low solution permeability” provided by the
Specification:
the term ‘zone of low solution permeability’ means a stratum,
lens, or other region having any possible configuration in a
heap that exhibits increased resistance or percolation or flow of
leach solution relative to the surrounding or adjacent material in
the heap, or relative to the average or typical material in the
heap.
Spec. ¶ 45. In other words, “low solution permeability” does not require any
particular permeability level except that the zone must be less permeability
than certain other zones.
Claim 1 also recites “wherein the wick drain is disposed to place the
proximal terminus of the wick drain on a first side of the zone of low
solution permeability and the distal terminus of the wick drain on an
opposite side of the zone of low solution permeability.” Appeal Br. 14
(Claims App.) (emphasis added). Resolution of Appellant’s arguments
depends, in part, on what it means for each of the recited termini to be “on a
first side” and “on an opposite side” of the recited zone. The Specification
explains that a wick drain is an example of a “drainage measure.” Spec.
¶ 12. The Specification then describes the two ends “of the drainage measure
located in the leach stockpile on opposite sides of the zone in solution
permeable areas.” Id. ¶ 51. The Specification illustrates what this means
with Figure 3. Id. ¶ 52. We reproduce Figure 3 below.
Appeal 2019-003316
Application 14/106,165

6

Figure 3 illustrates a leach stockpile with leach solution drainage measures
in accordance with embodiments of the Specification. Id. ¶ 19. Drainage
measure 321 is placed “through a zone of low solution permeability 322A.”
Id. In Figure 3, the ends of drainage measure 321 (which could be a wick)
are placed on opposite sides of zone of low solution permeability 322A.
Based on Figure 3, placement of the ends on opposite sides of the zone (as
claim 1 recites) does not require that ends be precisely at the edge of the
zone.
Based on the claim constructions discussed above, Appellant’s
arguments do not persuade us of reversible error. We first address
obviousness over Cramer in view of Seal. Appellant argues that “Cramer
does not contemplate zones of low permeability.” Appeal Br. 9. As the
Examiner explains, however, such zones would be expected in Cramer. Ans.
9. Cramer teaches use of wicking conduits to address drain buildup of fluid
within the heap pile. See, e.g., Cramer ¶¶ 10, 19. The existence of buildup
Appeal 2019-003316
Application 14/106,165

7
necessarily indicates an area of “increased resistance or percolation or flow
of leach solution relative to the surrounding or adjacent material” (Spec.
¶ 45) and therefore requires, according to Appellant’s definition, zones of
low permeability. See Ans. 8–9. Moreover, Seal teaches that heap piles do
indeed have zones of low permeability. Seal 1:30–39 (“A common problem
with heap leaching is nonuniform leaching of metals from the heap. [L]each
solution often does not uniformly contact all portions of the heap because of
permeability variations that exist within the heap. Such permeability
variations may result in preferential flow of leach solution.”).
Appellant also argues that Cramer pre-installs a multitude of wick
drains rather than identifying zones of low permeability and places the
drains only across those zones. Appeal Br. 8–9. This argument is
unpersuasive because the Examiner relies on Seal, not Cramer, to reach the
identification of zones of low permeability. Ans. 12. “Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.” In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellant argues that modifying Cramer by identifying wick drains
(as taught by Seal) and then placing the drains across zones of low
permeability would change the fundamental principle of operation of
Cramer. Appeal Br. 9–10. We disagree. Cramer is already concerned with
improving heap drainage. Ans. 9–10. Both Cramer and Seal address
improving percolation of leaching fluid across low permeation zones. Id.
Appellant does not persuasively refute the Examiner’s stated rationale for
combining Seal’s teachings with Cramer: “in order to improve heap
extraction, as taught by Seal.” Id. at 4.
Appeal 2019-003316
Application 14/106,165

8
Appellant further argues that Cramer does not teach placing wick
drains across zones of low permeability. Appeal Br. 11–12. This argument is
unpersuasive because it addresses Cramer individually rather than
addressing the combined teachings of Cramer and Seal. Moreover, Cramer’s
drains necessarily have ends on opposite sides of zones of impermeability;
such an arrangement would be necessary for Cramer to, as Cramer teaches,
drain buildup of fluid within the heap pile. Ans. 11; see also Cramer Fig. 1
(illustrating wick drains passing through entire heap pile with ends on each
edge of the pile and, thereby, necessarily passing through zones of
impermeability within the pile with ends on opposite sides of such zones).
Appellant does not persuasively refute the Examiner’s reasoning in this
regard.
With respect to the Examiner’s second rejection, Appellant presents
no argument rebutting the Examiner’s stated rationale for why a person of
skill in the art would not have substituted Seal’s drilling and hydraulic
fracturing with Cramer’s wick drains. See Ans. 5–7, 12. Appellant’s
arguments, addressed above, do not persuasively rebut the Examiner’s
findings regarding Seal and Cramer or the Examiner’s stated rationale for
combining Cramer’s wick drains with Seal’s method.
Because Appellant’s arguments do not identify reversible error, we
sustain the Examiner’s rejections.

Appeal 2019-003316
Application 14/106,165

9

CONCLUSION
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 4, 6 103 Cramer, Seal 1, 3, 4, 6
1, 3, 4, 6 103 Seal, Cramer 1, 3, 4, 6
Overall
Outcome
1, 3, 4, 6

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