Atlas Powder Company v Ireco Chemicals

[1988] APO 21

In the Matter of the Patents Act 1952 - and - In the Matter of Application No. 530773 for a Patent by ATLAS POWDER COMPANY - and In the Matter of opposition thereto under Section 59 by IRECO CHEMICALS.

 

DECISION OF A SUPERVISING EXAMINER OF PATENTS:

Background

Patent Application No. 530773 is entitled "Water-In-Oil NCN Emulsion Blasting Agent" and was lodged on 27 November, 1979. The application, which is based on a United States patent application, has a priority date of 4 December, 1978. Advertisement of acceptance appeared in the Official Journal of 28 July, 1983.

Ireco Chemicals (IRECO) lodged notice of opposition under sub-section 59(1) on 24 October, 1983 and service of evidence was completed on 20 February, 1987. The matter was set down for hearing in Sydney on 14 October, 1987. The notice of opposition specified paragraphs (c) to (i) inclusive of sub-section (1) of section 59 as the grounds of opposition; however at the hearing argument was restricted to those grounds concerned with prior publication, novelty and section 40. At the hearing Mr. C. Marsh, patent attorney, assisted by Mr. P. Whenman, both of F.B. Rice & Co., Sydney, represented Atlas Powder Company (ATLAS) and Dr. I. Ernst, patent attorney of Shelston Waters, Sydney, represented IRECO.

The Specification

The specification, as accepted, commences as follows:

"This invention relates to water-in-oil emulsion blasting agent compositions having a single oxidizer salt. In another aspect, this invention relates to a water-in-oil blasting agent composition which is detonable under high heads of water and will propagate in rigid paper containers once detonated under such high heads of water. In still another aspect, this invention relates to an emulsion blasting agent which is inexpensive, powerful, simple to manufacture and resistant to sensitivity losses from impact that occur, for example, during shipment, even in extreme weather conditions."

Then follows a description of the prior art which includes references to US Patents Nos. 4110134, 3770522 and 3447978. A statement, which appears to be the consistory statement but which is not in the same terms as any of the claims reads as follows:

"According to the invention, water-in-oil emulsion NCN blasting agents are provided having a simple formula allowing for ease of manufacture and high water pressure tolerance. The NCN water-in-oil emulsion blasting agent of this invention consists essentially of from about 75.5% to about 77.5% ammonium nitrate, from about 14.0% to about 18.0% water, from about 0.7% to about 2.0% of an emulsifier, from about 0.95% to about 2.2% of a wax, from about 2.0% to about 4.0% of an oil, and sufficient void containing material to yield a density in the final composition at the time of manufacturing of from about 1.20 to about 1.25 grams per cubic centimeter. Generally, upon aging, the emulsion will have a density of greater than about 1.20 but no more than about 1.35. To the above composition an auxiliary fuel may be optionally added, such as particulate aluminium in an amount up to about 12 parts of auxiliary fuel per 88 parts of the above composition, but generally up to about 4 parts of auxiliary fuel per 96 parts of the above composition. In the most of the preferred embodiment, the ratio of wax to oil is about 1:3. The composition is preferably packaged in rigid paper shells or in film packages."

The description states that no oxidiser salt other than ammonium nitrate is used in the blasting agent composition of the invention. Moreover the composition can be formulated using a standard commercial product (aqueous 83% ammonium nitrate solution) which simplifies the manufacture of the composition and results in a lower cost.

The specification states that the emulsifier is a water-in- oil emulsifier and lists those emulsifiers which are suitable for the invention including those derived from sorbitol by esterification. The specification continues as follows:

"According to the invention, a specific ratio of wax to oil in the composition is required to prevent cartridge- to-cartridge propagation failures and provide stability to the product.

... The wax content should range from about 0.95% to about 2.2% by weight and preferably from about 0.98% to about 2.11% by weight of the total composition, while in the most preferred composition about 1.24% by weight of the total composition is a wax."

The specification describes cartridge-to-cartridge propagation tests for two compositions, one of which has a wax to oil ratio of 3:1 whilst the other has a wax to oil ratio of 1:3 and is thus within the scope of the invention. Claim 1 reads as follows:

"1. A water-in-oil emulsion blasting agent composition having a single oxidizer that propagates under water consisting of:

(a) a discontinuous aqueous phase containing ammonium nitrate as the only oxidizer in an amount of from 75.5% to 77.5% by weight of the total composition, and containing water from 14% to 18% by weight of the total composition, said aqueous phase being present in a ratio of aqueous phase to continuous phase of carbonaceous fuel in the range of from 95:5 to 93:7 by weight thereof; (b) a continuous phase of carbonaceous fuel containing from 0.7% to 2.0% of an emulsifier by weight of the total composition, from 2.0% to 4.0% of an oil by weight of the total composition, and wax, said wax being present in the composition in a ratio of wax to oil of no more than 1:1 by weight; and (c) sufficient closed cell void containing material to yield a density of said blasting agent of from 1.20 grams per cubic centimeter to 1.35 grams per cubic centimeter."

Claims 2 to 18 are appended to claim 1, however the remaining claims read as follows:

"19. A method of underwater detonation which comprises:

(a) providing a water-in-oil emulsion blasting agent composition, in a spiral wound cardboard cylindrical container having a thickness of from 1/16 inch to 1/8 inch, said composition having a continuous phase of carbonaceous fuel, a discontinuous aqueous phase containing only one oxidizer, which is ammonium nitrate, with the aqueous phase present in a ratio of aqueous phase to carbonaceous fuel in the range of from 95:5 to 93:7 by weight thereof, from about 0.7% to about 2.0% of emulsifier by weight of the composition thereof, from 2.0% to 4.0% of oil by weight of the composition thereof, wax present in the composition in a ratio of wax to oil in the range of from 1:1 to 1:4 by weight thereof, and sufficient closed cell void containing material to yield a density of said blasting agent from 1.20 grams per cubic centimeter to 1.35 grams per cubic centimeter; (b) placing said blasting agent composition contained within said cardboard container underwater; (c) detonating said blasting agent composition while underwater.

20. The method of underwater detonation as recited in Claim 19 wherein the blasting agent composition contains:

(a) from 75.5% to 77.5% ammonium nitrate by weight of said composition; (b) from 14.0% to 18.0% water by weight of said composition; and (c) a ratio of wax to oil of 1:3 by weight.

21. The method of underwater detonation as recited in Claim 19 wherein the blasting agent composition contains:

(a) from 75.76% to 77.42% ammonium nitrate by weight of said composition; (b) from 14.20% to 17.78% water by weight of said composition; (c) from 2.11% to 3.92% oil by weight of said composition; and (d) a ratio of wax to oil of 1:3 by weight.

22. The method of underwater detonation as recited in Claim 19 further comprising adding up to 12 parts of an auxiliary fuel per 88 parts of said blasting agent composition during the manufacture of said composition.

23. The method of underwater detonation as recited in Claim 19 wherein said detonation occurs under about 30 feet of water.

24. The method of underwater detonation as recited in Claim 19 wherein said detonation occurs under about 100 feet of water.

25. The method of underwater detonation as recited in Claim 19 wherein said detonation occurs under about 160 feet of water."

The Evidence

The evidence-in-support consists of two declarations.

A declaration made by Ian Thomas Ernst which establishes that US Patents 4110134 and 3770522 became open to public inspection in the Patent Office Library in Canberra on 3 November 1978 and 4 September 1974, respectively.

The main declaration is made by Walter Bentley Sudweeks. Since 1972 Dr. Sudweeks has been involved in industrial research and development of commercial explosives including extensive involvement with water-in-oil emulsion slurries. Since 1976 he has been employed by IRECO holding positions including Senior Research Scientist, Director of Product Development and Director of Corporate Research.

Dr. Sudweeks refers to US patent No. 4110134 and his declaration includes Table 1 which compares the composition defined in the present claim 1 with the composition disclosed in the US patent. He points out that the present specification distinguishes the present compositions from those described in the citation because the citation does not disclose a composition which would be non cap-sensitive and possess high water pressure tolerance. According to Dr. Sudweeks US patent No. 4110134 discloses that some compositions are cap-sensitive and some are not and he considers that it would be easy to choose those which are non cap-sensitive. In any case he asserts that rendering compositions according to this citation non cap-sensitive by adjusting one or more of the variables is well known in the art.

Dr. Sudweeks also refers to US patent No. 3770522 and in Table 2 he compares the composition defined in the present claim 1 with the disclosure of this citation.

Dr. Sudweeks contends that the use of ammonium nitrate as the sole oxidiser salt in the present compositions does not result in "unexpected sensitivity" since the compositions described in US patent 3770522 can be cap-sensitive with ammonium nitrate as the sole oxidiser salt and gas bubbles as the only sensitiser.

Dr. Sudweeks submits that the present specification does not describe any special advantage which could not be obtained from the compositions described in the prior art. He also asserts that the specification does not show that substantially all members of the class described in the present specification possess the special advantage.

The evidence-in-answer consists of two declarations.

A declaration made by Paul Charles Whenman, a Technical Assistant employed by F.B. Rice & Co. which establishes that US Patents 4110134 and 4474628 became open to public inspection in the Patent Office Library in Canberra on 3 November, 1978 and 12 April, respectively.

The main declaration is made by Charles Gary Wade who is named as inventor of US patent No. 4110134.

Mr. Wade is an employee of ATLAS and is currently the team leader of the bulk emulsion explosives team. He has had experience with water-in-oil emulsion blasting agents for a period of over 8 years and he has over 15 years of experience in the formulation of cap-sensitive emulsion explosives. Mr. Wade supervised the developmental work which led to the present invention.

Mr. Wade declares that application No. 530773 claims a water-in-oil emulsion blasting agent composition containing very distinct ranges of very distinct ingredients which results in an emulsion blasting agent having properties that were not anticipated nor expected from the art. In particular he refers to the capability of cartridge-to-cartridge propagation under high heads of water when packaged in cardboard containers and increased sensitivity and resistance to sensitivity loses due to impact occurring from transportation during extreme weather conditions. He also states that at the time of the invention no suitable slurry product or emulsion product was available which had the above capabilities.

Mr. Wade declares that he is unable to determine how Dr. Sudweeks computed the ratio of aqueous phase to carbonaceous ??((fuel which he uses in Table 1 in respect of US patent No. 4110134. He also claims that this table is misleading because it states that the present specification describes the wax content as from a trace to 4% whereas the wax content in the present claim 1 is defined as "no more than 1:1 by weight". Mr. Wade also points out that US patent No. 4110134 does not disclose the importance of maintaining the specific wax to oil ratio of the present invention. He also states as follows:

"Brockington recognized what has become known as the DIH (drop impact hardness) phenomena (sic) and developed the present invention which overcomes the phenomena. The DIH phenomena observed by Brockington was that compositions with a high wax content which were cold became deactivated when dropped on a hard surface from a height of about three feet. Under such conditions those compositions became hard almost immediately after being dropped, because the salts crystallised resulting in deactivation of the explosive. Brockington's invention provides a composition which is much less subject to the DIH phenomena under low temperature and rough handling conditions."

I note that Dr. Brockington is named as the actual inventor in the present application.

Mr. Wade considers that there is no indication in US patent No. 4110134 nor is he aware of any disclosure in the art prior to the present invention that compositions, in which ammonium nitrate is the only oxidiser, would be detonable in wet boreholes under high heads of pressure and propagate cartridge-to-cartridge when packaged in heavy cardboard cartridges.

Mr. Wade also finds Table 2 in Sudweeks' declaration misleading and he points out that example 4 in US patent No. 3770552 is an inferior example even if the composition contains a single oxidiser salt. He infers this inferior nature from the fact that the composition was detonated at 120OF and no detonation properties are given at room temperature.

The evidence-in-reply consists of two declarations.

A declaration by Ian Thomas Ernst establishing that US Patent 3447978 became open to public inspection in the Patent Office, Canberra on 30 April, 1970.

The other declaration is by Walter Bentley Sudweeks.

Dr. Sudweeks declares that it is the use of closed cell voids, which are disclosed in US patent Nos. 4110134 and 3447978, and not the use of ammonium nitrate as the sole oxidiser salt, nor the use of a wax-to-oil ratio, that enables propagation under high heads of water. He also points out that it is irrelevant if example 4 of US patent No. 3770552 is inferior because the fact is that this patent teaches the use of ammonium nitrate as the sold oxidiser salt.

Dr. Sudweeks argues that the effect of the amount of wax on salt crystallisation in an emulsion after impact although described in Mr. Wade's declaration, is not described in the present specification. He also explains how he calculated the values in the tables in his first declaration.

Anticipation

Dr. Ernst made submissions on anticipation in relation to US patents Nos. 4110134, 3770522 and 3447978.

US Patent No. 4110134

US patent No. 4110134, which was published in Australia before the present priority date, relates to water-in-oil explosive emulsions that can be detonated with a No. 6 cap at diameters of 1.25 inches and less and that do not contain an explosive ingredient nor a-detonation catalyst. The emulsion consists of a hydrocarbon fuel including an emulsifier (3.5 to 8% by weight); water (10 to 22% by weight); closed cell void-containing material (0.25 to 15% by weight) sufficient to impart a density of from about 0.90 to about 1.35 g/cc to the explosive composition; and inorganic oxidizer salt (65 to 85% by weight). The inorganic oxidiser salt comprises principally ammonium nitrate and can contain another inorganic nitrate and/or an inorganic perchlorate. Matrix 5 in Table 5 of the citation describes an emulsion in which ammonium nitrate is the sole inorganic oxidiser salt.

The citation states that at least 2.5% by weight of the total composition should be either a wax or oil or a mixture thereof. Preferably, the wax content ranges from about 2.5 to about 4.5% by weight and the oil content ranges from about 0.5 to about 5.5% by weight of the total emulsion. The wax to oil ratio in the preferred embodiments is generally 3:1 although in matrix 5 of Table 5 the ratio is 0:1.

US patent No. 4110134 also contains a statement which reads as follows:

"the cap sensitive explosive emulsions of the subject invention survive use in a variety of environments including mines which are cold and damp, wet and dry boreholds, trenching operations in developed areas, underwater usage such as ditching under rivers and lakes, and quarrying operations.

In general, the water-in-oil emulsion explosive compositions of the subject invention are sensitive at 20OF and lower and have excellent storage stability. Emulsions designed to be utilized under frigid conditions or stored more than six months should preferably contain the inorganic perchlorate as a component of the inorganic oxidizer salt portion of the emulsion."

Dr. Ernst submitted that US patent No. 4110134 anticipated the present claims because it disclosed blasting compositions which contained the same ingredients in similar proportions to those defined in the claims. Mr. Whenman submitted that the citation did not teach that there was an advantage in a specific wax to oil ratio or a specific aqueous phase to continuous phase of carbonaceous fuel ratio.

I think that it is apparent that the blasting agent compositions defined in the present claims 1 to 18 lie within the scope of the compositions disclosed in US patent 4110134. Moreover this citation does not disclose a specific example of a composition that lies within the scope of claims 1 to 18. Thus these claims are in a position to be considered as a selection from US patent No. 4110134. A requirement for a selection patent is the discovery that one or more members of a previously known class of products possess some special advantage for a particular purpose, which could not be predicted before the discovery was made (Beecham Group Ltd. v. Bristol Laboratories International SA 1978 RPC 521 at 579).

Mr. Whenman submitted that the special advantages were the capability of cartridge-to-cartridge propagation under high heads of water as well as resistance to sensitivity losses due to impact and a cold environment. Dr. Ernst submitted that these advantages were taught in US patent No. 4110134. Moreover he pointed out that it was not clear what the present specification meant by "high heads of water" because of the conflict between the statements at page 4, line 35 and page 9, lines 12 and 13.

I note that the latter statement describes high water pressure as "greater than 180 feed (sic) of water". However the preferred embodiment which is described in the specification was only tested under 36 feet of water. I conclude that the present specification does not clearly state that a special advantage of the blasting agents is the capability of cartridge-to-cartridge propagation under high heads of water.

A statement in the present specification reads as follows:

"Thus, it would not be expected that the preferred wax to oil ratios disclosed herein would increase sensitivity and reduce sensitivity loss caused by impact that may occur, for example, during transportation, shipment or during usage, such as dropping the blasting agent. Failure to maintain the wax to oil ratio according to the invention can result in loss of sensitivity and failure to propagate underwater when placed end to end in cardboard containers, when the container is subjected to simulated transportation conditions, as shown in subsequent examples."

The specification also states that the blasting agents are resistant to sensitivity losses due to impact occurring, for example, from transportation even during extreme weather conditions.

Dr. Ernst said that the specification did not clearly state what was meant by the phrases "simulated transportation conditions" and "extreme weather conditions".

Mr. Wade declares that the present compositions are much less subject to the DIH phenomenon under low temperature and rough handling conditions. He also states that the present inventor observed this phenomenon in compositions with a high wax content.

I think that the relevantly skilled reader of the specification would understand what the specification meant by "simulated transport conditions" particularly in view of the fact that the passage above refers to dropping the blasting agent. However, in light of Mr. Wade's declaration, I consider that the phrase "extreme weather conditions" is misleading as it includes both high and low temperatures, whereas !he DIH phenomenon only occurs at low temperatures. However I note that the preferred embodiment was subjected to "cold weather impact conditions". Therefore the question I will consider with respect to selection is whether resistance to sensitivity losses from impact in cold weather conditions resulting from restriction of the wax to oil ratio is disclosed in the citation.

I note that US patent No. 4110134 teaches that substituting wax with oil in the carbonaceous fuel decreases the maximum density at which the emulsion can be detonated. I also note that this citation states that emulsions designed to be utilised under frigid conditions should preferably contain inorganic perchlorate as a component of the inorganic oxidizer salt portion of the emulsion. Thus I consider that the citation does not teach that restriction of the wax to oil ratio results in a special advantage for the purpose of providing the composition with resistance to sensitivity losses from impact even in cold weather conditions. Moreover I do not think that this special advantage could have been predicted before the present inventor recognised the DIH phenomenon. Therefore I think that the present specification describes a special advantage which can be obtained by restriction of the wax to oil ratio.

Dr. Ernst argued that it was not possible to conclude that all the members of the group selected by claims 1 to 18 possessed this special advantage because the present specification merely described a single specific example (I.G. Farbenindustrie A.G.'s Patent 47 RPC 289 at page 322). However there is no evidence before me which shows that any of the blasting agents defined in claims 1 to 18 do not have resistance to sensitivity losses from impact in cold weather. Therefore I consider that the present blasting agents represent a selection from the compositions disclosed in the citation. Consequently the blasting agents defined in claims 1 to 18 age not anticipated by US patent No. 4110134.

The method of underwater detonation defined in claims 20 and 21 use blasting agents that fall within the scope of the blasting agents defined in claim 1. Therefore the methods defined in claims 20 and 21 are not anticipated by US patent No. 4110134.

The method of underwater detonation defined in claims 19 and 22 to 25 use blasting agents which have a wider range of proportions of ammonium nitrate and water than the proportions defined in claim 1. However I consider that the blasting agents which are used in claims 19 and 22 to 25 also represent a selection from the blasting agent compositions disclosed in US patent No. 4110134. Therefore the methods of underwater detonation defined in claims 19 and 22 to 25 are not anticipated by the methods of detonation described in this citation.

U.S. Patent No. 3770552

I am satisfied for reasons similar to those described above, that the blasting agents defined in claims 1 to 18 and the methods defined in claims 19 to 25 are not anticipated by US patent No. 3770552.

US Patent No. 3447978 Mr. Whenman submitted that this citation was not strictly evidence-in-reply whereas Dr. Ernst said that US patent No. 3447978 was cited in response to a point made in the evidence-in-answer. I agree with Dr. Ernst. Moreover citation of US patent No. 3447978 did not catch ATLAS by surprise because, as was pointed out by Dr. Ernst, this US patent is part of the disclosure of US patents Nos. 4110134 and 3770552 as well as the present ATLAS specification.

US patent No. 3447978 describes a blasting agent having an aqueous component forming a discontinuous phase, a carbonaceous fuel component forming a continuous emulsion phase and an occluded gas component dispersed within the emulsion. These components are combined with water-in-oil type emulsifying agent to form an emulsion having a density of less that 1.45 grams per c.c. and having at least 4% by volume of occluded gas at 70OF and atmospheric pressure.

The aqueous solution component is basically formed of ammonium nitrate dissolved in water but may include other water soluble inorganic oxidizer salts. The aqueous solution generally includes 100 parts by weight of ammonium nitrate and from 10 to 60 parts by weight of water based on 100 parts by weight of ammonium nitrate.

The carbonaceous fuel material selected for use in the emulsion will generally depend upon the physical form desired in the final product. The carbonaceous fuel material also influences the explosive characteristics of the emulsion since the occluded gas component is primarily retained in the fuel component as a discontinuous phase.

The carbonaceous fuel component can be a mixture of a wax and an oil component. A quantity of at least about 2% and preferably at least about 5% by weight of the carbonaceous fuel component should desirably constitute wax or insufficient gas is occluded in the finally prepared emulsion. The carbonaceous fuel component is generally added in an amount from about 4 to about 45 parts by weight per 100 parts by weight of ammonium nitrate.

The third component of the emulsion is an occluded gas component forming a discontinuous emulsion phase and the gas is introduced into the emulsion by any suitable means. The sensitivity and detonation velocity of the emulsion may be modified by addition of gas entraining particles which may be substituted in total or part for the occluded air component. The consistency of the carbonaceous fuel component may be thinner for holding the gas entraining particles than in the case when the gas component is simply occluded in the emulsion. The fourth component of the emulsion is a water-in-oil emulsifying agent in an amount of about 0.75 parts to about 5 parts by weight per 100 parts by weight of ammonium nitrate.

The wax to oil ratio of the preferred embodiments includes examples in which this ratio is 0.4:1. Example 3 describes a blasting agent which contains 3.4 parts by weight of wax, 3.4 parts by weight of a modified high viscosity oil, 1.4 parts by weight of a water-in-oil type emulsifying agent, 100 parts by weight of ammonium nitrate and 27 parts by weight of water. The prepared emulsion has 7.7% by volume of occluded gas and a density of about 1.35gms/cc.

The specification also states that these emulsions are insensitive to usual mechanical shock and have high water resistance. They may be safely manufactured, stored and shipped and may be prepared in a processing plant and transported to the blasting site.

Dr. Ernst lodged a document in which the proportions of the components described in this citation have been recalculated as percentage by weight of the total composition. He submitted that US patent No. 3447978 anticipated the present claims whereas Mr. Whenman argued that this citation was not an anticipation because it did not contain clear and unmistakable directions to prepare blasting agents with the presently claimed proportions of components (General Tire and Rubber Co. Ltd. v. Firestone Tyre and Rubber Co. Ltd. 1972 RPC 457 at page 486).

The blasting agents defined in claims 1 to 18 lie within the scope of the compositions described in US patent No. 3447978 and this citation does not disclose a specific example of a composition that lies within the scope of the claims. Moreover the citation does not refer to the special advantage possessed by the present compositions. It follows from reasoning similar to that used with respect to US patent No. 4110134 that the blasting agents defined in claims 1 to 18 are not anticipated by US patent No. 3447978.

Example 3 in US patent No. 3447978 described a blasting agent having a continuous phase of carbonaceous fuel, a discontinuous aqueous phase containing only one oxidizer, which is ammonium nitrate, with the aqueous phase present in a ratio of aqueous phase to carbonaceous fuel of 94:6 by weight, 1.0% of emulsifier by weight of the composition, 2.5% of oil by weight of the composition and wax present in the composition in a ratio of wax to oil of 1:1 by weight. The composition described in example 3 contains ocluded air and has a density of 1.35 grams per cubic centimeter.

The above values lie within the range of the corresponding values defined in claim 19 for the composition used in the method of underwater detonation except that the claimed composition has sufficient closed cell void containing material to yield a density of 1.20 to 1.35 grams per cubic centimeter rather than occluded air. The citation teaches that the occluded air can be totally or partially replaced by gas entraining particles, i.e. closed cell void containing material. The citation also teaches that the described compositions have high water resistance.

In my view the citation does not contain clear and unmistakable directions to detonate underwater the blasting agent described in Example 3 in which the occluded air has been totally replaced by gas entraining particles. Thus the method described in US patent No. 3447978 does not prior publish the methods defined in claims 19 to 25. However I think that the underwater detonation of the blasting agent described in Example 3 in which the occluded air has been replaced by gas entraining particles does not involve any inventive ingenuity nor change the merit of the invention (Griffin and Isaacs 1942 AOJP 739 at page 740). Therefore I am satisfied that the method defined in claim 19 is not novel in the light of the method described in US patent No. 3447978.

The blasting agents used in the method of underwater detonation defined in claims 20 and 21 have different percentages by weight of ammonium nitrate and water to those used in Example 3. Consequently the methods defined in these claims are novel in the light of Example 3. Similarly claim 22 is novel in the light of Example 3 because the blasting agent used in the claimed method has a specified proportion of an auxiliary fuel.

Mr. Wade declares as follows:

"Air-sensitised emulsions (and slurries) were well-known to de-sensitise under significant heads of water due to compression of air bubbles by water pressure. However, as pointed out in Para 17 of my 16th July 1984 Declaration, microballoons were well known not to compress under those conditions."

I conclude that the blasting agent described in Example 3 of the citation does not have the same merit with respect to detonation under high heads of water if the occluded air is replaced with gas entraining particles. Therefore I am satisfied that the methods defined in claims 23 to 25 are novel in the light of the citation.

Section 40

I note that in claims 1 and 19 the proportion of wax is defined in terms of a "ratio of wax to oil' whereas what appears to be the consistory statement describes the proportion of wax as "about 0.95% to about 2.2%". The description also contains the statement, which I have quoted above, which refers to the requirement for a specific ratio of wax to oil to prevent cartridge-to-cartridge propagation failures and provide stability to the product. This statement also states that the wax content should range from "about 0.95% to about 2.2% by weight ... of the total composition". Elsewhere (page 7, lines 23 to 26) the description states that the wax to oil ratio is generally in the range of from 1:1 to 1:4 although it may be "as low as about 1:10".

I consider that the relevantly skilled reader of the specification would be unable to conclude whether it was essential for the blasting agent composition of the invention to have a wax content of 0.95% to 2.2% by weight of the total composition or whether it was sufficient for the ratio of wax to oil to be no more than 1:1. Another possible conclusion is that it is essential for the wax content to be 0.95% to 2.2% by weight of the total composition as well as the ratio of wax to oil being no more than 1:1. In this situation the wax to oil cannot be as low as 1:10. Therefore I am satisfied that the description does not fully describe the invention.

I also note that claims 1 and 19 define the density of the blasting agent without specifying, as does the statement which appears to be the consistory statement that the density range given in the claim is the density after aging the composition rather than the density range at the time of manufacturing the composition. Moreover claim 19 fails to define the relative proportions of ammonium nitrate and water, which I think are essential features of the present blasting agent composition. Consequently I am satisfied that both claims 1 and 19 are not fairly based on the description of the invention.

Dr. Ernst in his arguments relating to selection pointed out that it was not clear what the present specification meant by "high heads of water". On page 4, line 35 high heads of water are referred to as "up to 180 feet" whereas on page 9, lines 12 and 13 high water pressure is said to be "greater than 180 feed (sic) of water". Consequently I consider that the invention is not fully described in this regard.

Earlier in this decision I also pointed out that the phrase "extreme weather conditions" was misleading because the phrase included both high and low temperatures. Therefore I consider that the invention is not fully described with respect to the phrase "extreme weather conditions". Consequently I am satisfied that the specification of application No. 530773 does not comply with section 40.

Summary

I have found that the specification of application No. 530773 does not comply with Section 40. I have also found that claim 19 is not novel. Therefore I give ATLAS 60 days from the date of this decision to propose amendments to overcome these defects. I award costs of this opposition against ATLAS.

(M. KENDALL)

Supervising Examiner of Patents

27 JUN 1988