The right to blast

Blasting is a complicated process that requires skill, experience, and a lot of knowledge to carry out well.

There are numerous ways to set up a blast, and once certain methods take hold the lessons learnt on one site can quickly be applied to another, spreading until they become an industry standard.

Everyone uses these methods as they are safe, tested, and most importantly work.

But happens when a company invests time, money, and research into developing these new methods?

Should they have control over a method or application that makes mining operations safer and, especially in this economic climate, more efficient?

The question then arises over who has the right to use these methods or product name, and while technology is easily patentable with a trail of development that can ensure the right people are recognised as the inventors with all the rights that entails, how can you do the same with a basic process?

This is the problem now facing Orica, after it applied for patents on improved methods for shotfiring techniques and electrical conductive elements.

While this isn’t the first time that the explosives manufacturer and contractor has applied for IP patents, these two applications focused on blasting in differing layers and levels of rock would be different.

The right to claim ownership of these methods, in particular Australian patent No. 2004293486 – entitled ‘Method of blasting multiple layers or levels of rock‘ has been challenged by Dyno Nobel.

And this battle has been raging for close to a decade, as Dyno Nobel fights Orica under sections 27 and 28 of the Patents Act.

The right to blast

When a patent comes under the scrutiny of these two sections of the Act, it is because another body believes that there is “information showing that an invention is not new (novel) or does not involve an inventive (or innovative) step”.

In other words, Dyno Nobel believes that Orica has attempted to claim ownership and the rights to a common blasting practice.

Speaking to patent and IP law firm Baxter IP senior associate Phil Burns, he told Australian Mining that the case appears to hinge on common practice weighed against the method’s inventiveness.

“In this instance if the practice is widespread and common in the industry then it would be difficult to patent as it is common knowledge, which is what Dyno Nobel appears to claim in the case,” he said.

“There are essentially two tiers for patentability: one is the newness, the other is inventiveness – whether or not the method would be obvious to a skilled worker in the field – this is what Orica seems to be focused on.”

According to Dyno Nobel Orica “applied for that specifically covers the blasting of multiple layers of overlying rock to a free face in a single blasting cycle where the top layer is fired first and as a cast blast, and the bottom layer is subject to stand up blast conditions”.

“The main claim defines that the bottom layer is buffered in the direction of the cast blast (i.e. essentially restricting movement in the bottom layer during the blasting process), that there is a 500 millisecond delay between layers, and that at least ten per cent of the cast blast is thrown beyond the free face.”

Dyno Nobel stated that it believes Orica’s “claimed blasting techniques are the standard work of a drill and blast engineer, who is responsible for blast pattern design in the mining operations of mining companies”.

“In particular, Dyno Nobel believes Orica is attempting to claim the mere combination of well-known blasting methods into a single blasting cycle. However, combining different blasts into a single cycle has been a longstanding approach that has been used in blasting for several decades. Therefore, there is no ‘invention’ in Orica’s claimed blasting techniques, which are an obvious adaptation of well-known prior art blasting methods.”

It went on to say that the combination of these well-known techniques is not patentable, and miners should be free to use these blasting techniques as they have in the past.

“If Orica’s Patent application is granted, drill and blast engineers who work for mining companies would be significantly constrained by no longer being free to utilise these common blasting techniques, which will inhibit the industry’s move to greater efficiencies.”

Orica were unavailable for comment at the time of publication.

As this article goes live, the battle for the rights to this practice remain contested.

It will be up to the courts to decide whether Orica has the rights to it, or whether the case is essentially replay of the Ugg Boots fiasco in the US, where a US company attempted to sue Australian companies for using the name Ugg Boot.

Does one player own the rights, or do they belong to the people? 

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