Appeal No. 1998-1855 15
Application No. 08/459,537
bacteria capable of at least partially oxidizing the sulfur content,” as required by the
claimed subject matter. Accordingly, we reverse the obviousness-type double patenting
rejections over the claims of Brierley ‘559 or Brierley ‘942.
With respect to Brierley ‘486, the appellants state that, “[t]he present claims do
not teach or suggest (a) the use of a bacteria capable of attacking, by biooxidation,
sulfides and/or elemental sulfur and ferrous iron in the ore particles; (b) the use of
nutrients in an acidic medium recirculated within a static heap; (c) or biooxidation aided
by ferric iron in a solution.” See Brief, page 32. We find, however, that independent
claim 4 of Brierley ‘486 is directed to a process for biooxidation of sulfur values having
an aqueous content of from 4% to 12% by weight as required by the claimed subject
matter. Furthermore claim 4 is free of requirements for the presence of ferrous and
ferric iron and nutrients in an acidic medium recirculated within a static heap. We further
find that claim 4 provides for particulates that are formed from particles of the ore and
an inoculant. We find that a heap is thereafter formed, the sulfur content in the
particulates are biooxidized and metal values are recovered.
The meaning of the term, “sulfide values” is gleaned from the specification that
discloses that reference is directed to a “low sulfide and low-concentration metal values in
an ore.” See Brierley ‘486, column 5, lines 25-26. It is further stated that, “[b]y low
sulfur content it is meant ores of less than about 0.2 to 0.3% sulfide by weight.” See
Brierley ‘486, column 5, lines 52-53. As further stated at column 12, lines 56-59 of
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