Bert ZAUDERER

Patent Trials and Appeals BoardJun 17, 2021

2020003919 (P.T.A.B. Jun. 17, 2021)

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. 13/584,574 08/13/2012 Bert ZAUDERER 3923-40006 6738 25570 7590 06/17/2021 Roberts Calderon Safran & Cole, P.C. 7918 Jones Branch Drive Suite 500 McLean, VA 22102 EXAMINER KEITH, JACK W ART UNIT PAPER NUMBER 3646 NOTIFICATION DATE DELIVERY MODE 06/17/2021 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): docketing@rcsc-ip.com lgallaugher@rcsc-ip.com secretaries@rcsc-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BERT ZAUDERER ____________ Appeal 2020-003919 Application 13/584,574 Technology Center 3600 _______________ Before LINDA E. HORNER, MICHELLE R. OSINSKI, and LISA M. GUIJT, Administrative Patent Judges. GUIJT, Administrative Patent Judge. DECISION ON APPEAL1 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1–4. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 See related, prior decisions in the prosecution of Application No. 13/584,574: Appeal Nos. 2016-006818; 2018-008255. 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the inventor, Bert Zauderer, as the real party in interest. Appeal Br. 2. Appeal 2020-003919 Application 13/584,574 2 STATEMENT OF THE CASE The present invention relates to one-month long rocket missions by Astronauts from Earth orbit to a Mars landing that is powered by a gas-cooled nuclear reactor followed by beryllium fuel that reacts with oxygen from dissociated water to form BeO droplets that heat hydrogen from dissociated water in a cyclone combustor to 6000ºK,[ ]followed by alkali seeding to render the gas electrically conducti[ve] as it flows through an MHD generator-accelerator to propel the rocket to speeds much beyond attainable by gas dynamic thrust. Spec. 1:10–16. Claim 1, reproduced below as the sole independent claim on appeal, is exemplary of the subject matter on appeal. 1. A method of earth orbit to a planetary landing, round trip mission with astronauts taking off in about 500,000 pound weight rocket ship that travels a direct about 75 million kilometer path in about 39 days, comprising: thrusting a rocket from on-board pressurized water first heated in a 3000ºK pebble bed nuclear reactor; dissociating water by nuclear reaction, wherein the dissociated water and steam after heating by the 3000ºK pebble bed nuclear reactor flows into a pre-combustion chamber to completely dissociate the water; the complete dissociation of the water into oxygen reacts with beryllium powder thereby forming beryllium oxide liquid droplets in a slagging combustor; injecting supplemental hydrogen into combustion states of the slagging combustor; heating dissociated hydrogen from the water to 6000ºK which expands to a gas in a gas dynamic nozzle that is seeded with an alkali metal from 0.1% to 1% to render the gas electrically conducting as it flows through a linear Faraday magnetohydrodynamic (MHD) generator channel that is co- axially attached to a MHD linear accelerator that is co-axially attached to an expanding co-axial channel; and exhausting the gas into Space from the expanding co-axial channel, Appeal 2020-003919 Application 13/584,574 3 wherein a MHD generator-accelerator comprises the linear Faraday magnetohydroynamic (MHD) generator channel and the MHD linear accelerator. THE REJECTIONS3 I. Claims 1–4 stand rejected under 35 U.S.C. § 101 as unsupported by “a specific and substantial asserted utility or a well-established utility.” Final Act. 4–6. II. Claims 1–4 stand rejected under 35 U.S.C. § 112, first paragraph as failing to comply with the enablement requirement. Final Act. 6. II. Claims 1–4 stand rejected under 35 U.S.C. § 112, first paragraph, for failing to comply with the written description requirement. Final Act. 6–7. III. Claims 1–4 stand rejected under 35 U.S.C. § 112, second paragraph, as being indefinite. Final Act. 7–8. ANALYSIS Rejection I The Examiner finds that “the information disclosed in [Appellant’s Specification] is purely theoretical and may prove useful at some future date but more research would be required,” and concludes that “the invention is not supported by a specific or substantial or a well-established utility.” Final Act. 5 (citing MPEP § 2107.01(I)(B); In re Fisher, 421 F.3d 1365, 1371 (Fed. Cir. 2005)). The Examiner relies on two published articles to support 3 The Final Office Action also includes an objection to the Specification. Final Act. 4. Objections to the Specification are petitionable, not appealable, matters. Appeal 2020-003919 Application 13/584,574 4 the Examiner’s conclusion. First, the Examiner relies on “an article on space.com,”4 titled, “Ion Thruster Prototype Breaks Records in Tests, Could Send Humans to Mars,” referred to herein as “the Ion Thruster Article,” for disclosing that “the record for generated thrust at the time [of the invention] was 5.4 Newtons,” as compared to Appellant’s described spacecraft with an engine power of “33503 N,” which is “6000 times greater [than] the most powerful known thruster,” and which “would need to be maintained for the entire trip to make the 39 day requirement,” as determined by the Examiner. Id. Second, the Examiner relies on another “article on space.com,”5 titled, “NASA is about to Launch the Fastest Spacecraft in History. Target: The Sun!,” referred to herein as “the Parker Solar Probe Article,” which the Examiner finds discloses “the fastest craft ever launched in to space,” and whereupon the Examiner concludes that “[t]o maintain the speeds needed for the instant invention[,] a thrust over 18 million times greater than the fastest launched spacecraft would be required.” Id. The Examiner further determines that although Appellant “has cited years of R&D, more than the theoretical calculations and assumptions presented in the [Specification] are required to establish utility for the claimed invention due to its departure from the current state of the art.” Ans. 5 (emphasis added). The Examiner also relies on Appellant’s own alleged admission that “years of work are required to make the claimed invention useful,” as Appellant “appears to hold the position that the claimed inventive method of a round trip manned 4 https://www.space.com/38444-mars-thruster-design-breaks-records.html, published October, 2017. 5 https://www.space.com/41447-parker-solar-probe-fastest-spacecraft- ever.html, published August 10, 2018. Appeal 2020-003919 Application 13/584,574 5 mission is at least 10 years away from being realized.” Ans. 4; see Appeal Br. 10. Appellant submits that “Appellant has set forth a specific and substantial utility,” namely, that “the claimed invention provides a propulsion system which can be used for rockets and space travel.” Appeal Br. 15 (citing Spec., pp. 11, 12). Appellant argues that the Examiner is not providing any scientific reasons for the rejection of all claims, contrary to the decades of experimental MHD data that Appellant conducted from MIT- MHD doctoral work in the early 1960s, followed by two decades of MHD at GE Aerospace, and followed by Fossil Energy R&D at Coal Tech Corp. that Appellant formed in 1981. Further Appellant’s present application also includes published scientific data from world famous engineers (e.g., Rosa, Richard J., Craggs, J.D., Massey, H.S.W., Sutton, George W., Sherman, Arthur) that support this MHD work. Appeal Br. 4–5 (emphasis added); see also id. at 9 (arguing that “the Examiner appear[s] to disregard the inventor[’]s five decades of R&D experience in MHD and fossil combustion as pure speculation” and “has not provided any credence to the experience and knowledge of the inventor”); id. (“the Examiner has ignored 40 plus years of experience, education and research of Appellant Zauderer in these field since his doctorate in Mechanical Engineering at MIT”). Appellant submits that the claimed invention involves [reaching Mars] in 39 days using metal fuels that heat O2 and H2 in a pebble nuclear gas reactor with MHD propulsion (Case 1A . . . ) to about 3000ºK, followed by further heating by Beryllium powder reaction in Oxygen to form the metal Oxides and heat the H2 to 6000ºK (Case 2A . . . ) in a counter swirl 2 stage slagging combustion while retaining 90% of the BeO for reuse to Be at voyage end with dissociation by a nuclear reactor or coal Appeal 2020-003919 Application 13/584,574 6 fired, zero emission coal combustor. The H2 is then rendered electrically conducting with under 1% Cesium and enters the non-equilibrium MHD generator-accelerator to propel the Rocket to Mars in 39 days, and back to Earth. In Cases 1A and 2A the MHD enables 39 day trips in rockets that are about one half of the 400 foot high, multistate NERVA6 1970s 6 month semi-circle NASA rocket . . . . The preferred Case 3A . . . notes the H2, O2 liquid, are replaced with water on board, which is dissociated and reduces the rocket size to 10% of NERVA with the same capsule sizes. However, to use water one must dissociate the water by non- equilibrium by LeChatilier’s Principle to remove all water into the MHD generator to prevent the water from quenching non- equilibrium ionization . . . . In particular, under equilibrium dissociation, too much H2O can inhibit the non-equilibrium MHD generator-accelerator. The breakthrough aspect[s] of Closed Cycle MHD in the claimed invention are disclosed throughout the present application . . . , where the NERVA circumferential Mars trip called cases 1, 2, and 3, is now called cases 1A-same peak temperature of 3000°K as NERVA nuclear but with added MHD that cuts that Mars rocket weight in half. But then Beryllium is added raising the peak temperature to 6000°K, the same one-half of NERVA weight with only liquid H2 and O2. Then, using water in the rocket and LeChateliers principle to dissociate it and MHD which cuts the rocket weight to 10% of NERVA, and as in case 2A, 39 days to Mars. Id. at 5–6 (citing Spec., e.g., 9:16–29, 85:22–26, 85:27–68:9); see also id. at 10–11 (citing Spec., pp. 10–11, “Brief Description of the Drawings”). Regarding the Ion Thruster Article, Appellant argues that the article “only compares plasma thrusters to conventional chemical propulsion 6 The Specification’s use of the term “NERVA” is disclosed with reference to “NASA’s 1960s NERVA 3000°K nuclear, multi-stage hydrogen rocket program,” which was “terminated in the early 1970s.” Spec., p. 2. Appeal 2020-003919 Application 13/584,574 7 rockets, which is different from the nuclear rockets described in the [S]pecification.” Appeal Br. 6. Appellant submits that “the NERVA nuclear rockets of the 1960s described in the [S]pecification had a thrust of 1.06 million Newtons for 825 seconds.” Id. (citing Spec. 24:12–28). Appellant also submits that the claimed rocket improves on NERVA nuclear rockets by using high thrust from a joint metal fuel and electromagnetic MHD propulsion to travel to Mars in about one month . . . . By improving the specific impulse to 1620 seconds (i.e., double the 825 seconds of the nuclear NERVA rockets) with metal fuels, higher thrust is achieved and therefore the rocket would reach Mars in a radial direction in approximately 39 days. Id. at 6–7 (citing Spec. 24:12–38, pp. 27, 65). Regarding the “the Parker Solar Probe Article,” Appellant argues that, indeed, the claimed invention “uses most of the hydrogen energy to propel the rocket, which enables velocities far above those attainable with a nuclear rocket alone.” Appeal Br. 7 (citing Spec., p. 61). Appellant explains that “in the claimed invention, the MHD propulsion can provide a factor of ten higher thrust, and thereby drastically shorten the voyage by replacing the elliptic rocket trajectories with direct radial interplanetary trips,” and therefore, “the claimed invention can travel to Mars in the claimed 39 days.” Id. at 7. Appellant further submits that [t]he claimed invention uses a metal fuel combined with water and part hydrogen to reduce the rocket ship size by a factor of ten. . . . [The Specification] also discloses that the calculated weight is 25% of the original NERVA takeoff weight. [The Specification] also discloses that using initial thrust with an orbit velocity of 17,500 mph in the direction of Mars reduces the required additional thrust velocity for the 39 days Mars transit from 49,790 mph (i.e., approximately 80,130 kmh) to 32,790 Appeal 2020-003919 Application 13/584,574 8 mph. Therefore, the above calculation does take into account the weight of the craft, as well as other functions. Id. (citing Spec., pp. 81, 101, 107). Appellant concludes that, in view of the above, “the claimed invention is supported by a credible and well-established utility.” Appeal Br. 7. Appellant further submits that a person of ordinary skill in the art “would not be skeptical that [Appellant’s Specification] would be sufficient to reduce to practice such a novel invention.” Id. at 8 (citing the teachings in U.S. Patent No. 8,277,543, and specifically, 18:40–19:24, Fig. 5; and “Laws of Physics: Carnot Thermodynamics, Newton Motion, LeChatelier non equilibrium, MHD power and propulsion, Chemical reactions of particles, and construction of rockets by Lockheed Martin”). Appellant submits that the Examiner “has not provided any countervailing evidence that shows that one of ordinary skill in the art would have a legitimate basis to doubt the credibility of [statements of fact that the technology is feasible, works and is credible].” Id. at 12 (citing MPEP §2107(II)); see also id. at 13 (citing MPEP §2107.01(I)). Appellant further submits that “the claimed invention can be implemented immediately,” for example, Appellant Zauderer had stored a 20 MMBtu slagging coal combustor, which can be first used to show Aluminum combustion on Earth to react with oxygen in air to form Al2O3 and heat the helium to 6000°K at up to 10 Atm. in this vessel. Beryllium can then be implemented in Space. Separately, the small MHD generated used in pulsed MHD tests in 1990 still exists with a capacitor bank power. Also, the design and drawings of the 50 MW thermal, 37 MW electric now should be available. More important a suitable continuous test facility may be available in King of Prussia, PA. The facility can be reconverted to construct the Mars rocket components. Appeal 2020-003919 Application 13/584,574 9 Id. at 9. Appellant submits that the claimed invention “could be operational for . . . a manned landing on Mars in 10 years.” Id. at 10. Finally, Appellant submits that the PTAB Board has already decided this issue. Appeal Br. 4; Reply Br. 2–3 (citing Appeal Nos. 2016-006818; 2018-008255). Section 101 requires a utility that is both substantial and specific. A substantial utility requires: show[ing] that an invention is useful to the public as disclosed in its current form, not that it may prove useful at some future date after further research. Simply put, to satisfy the “substantial” utility requirement, an asserted use must show that the claimed invention has a significant and presently available benefit to the public. In re Fisher, 421 F.3d 1365, 1371 (Fed. Cir. 2005). A specific utility is “a use which is not so vague as to be meaningless.” Id. In other words, “in addition to providing a ‘substantial’ utility, an asserted use must also show that [the] claimed invention can be used to provide a well-defined and particular benefit to the public.” Id. Whether an application discloses a utility for a claimed invention is a question of fact. In re Ziegler, 992 F.2d 1197, 1200 (Fed. Cir. 1993); Raytheon Co. v. Roper Corp., 724 F.2d 951, 956 (Fed. Cir. 1983). “The PTO may establish a reason to doubt an invention’s asserted utility when the written description ‘suggest[s] an inherently unbelievable undertaking or involve[s] implausible scientific principles.”’ In re Cortright, 165 F.3d 1353, 1357 (Fed. Cir. 1999) (quoting In re Brana, 51 F.3d 1560, 1566 (Fed. Cir. 1995)) (alteration in original). Stated differently, the Examiner must present the evidence necessary to establish a reason for one of ordinary skill in the art to question the objective truth of the statement of utility. Id. Once the Appeal 2020-003919 Application 13/584,574 10 examiner has provided evidence showing that one of ordinary skill in the art would reasonably doubt the asserted utility, then the burden shifts to Appellant to submit evidence sufficient to convince such a person of the invention’s asserted utility. Brana, 51 F.3d at 1566. See, e.g., In re Swartz, 232 F.3d 862, 864 (Fed. Cir. 2000) (“the PTO provided several references showing that results in the area of cold fusion were irreproducible”). On the record before us, we determine that the Examiner’s reliance on the large scale of advancement relative to rocket thrust and speed of Appellant’s claimed invention as compared to the current state of the art, as demonstrated by the Ion Thruster Article and the Parker Solar Probe Article, is insufficient to establish that Appellant’s claimed invention involves an inherently unbelievable undertaking or implausible scientific principles. As argued by Appellant, the articles do not address whether any of the claimed technologies, alone or in combination, lack scientific support (i.e., rocket thrust created from a pebble bed nuclear reactor, expanding hydrogen in a gas dynamic nozzle seeded with an alkali metal as it flows through a linear Faraday MHD generator channel co-axially attached to a MHD linear accelerator co-axially attached to an expanding co-axial channel). See also Appeal No. 2016-006818, pp. 5–6 (wherein, with respect to the same application, Application No. 13/584,574, the PTAB decided that “the Examiner’s sole reliance on a text book from 1974 (which does not state that MHD technology is not theoretically possible) is insufficient evidence to show that one of ordinary skill in the art would reasonably doubt the asserted utility, or that as of the date of Appellant’s invention, the statement in the 1974 reference remained true”). In other words, the Examiner has failed to sufficiently establish a reason to doubt the claimed invention’s asserted Appeal 2020-003919 Application 13/584,574 11 utility because the Examiner does not address the scientific principles disclosed in the written description. For example, the Examiner does not establish the alleged experimental nature of MHD power technology, as claimed, but rather, the Examiner establishes the technological advance presented by the claimed invention as compared to the current state of the art in terms of rocket speed and thrust. Regarding the Examiner’s finding that claimed invention is purely theoretical, we know of no prohibition against claiming an invention based on scientific theory, as long as the invention is useful to the public as disclosed in its current form, not that the invention may prove useful at some future date after further research. Here, the Examiner has not identified with any particularity which of the claimed scientific principles are subject to further research in order for the claimed invention to be useful to the public as the claimed invention is disclosed in the Specification. Nor has the Examiner established that a method of Earth orbit to planetary landing, round trip mission with astronauts taking off in about 500,000 pound weight rocket ship that travels a direct about 75 million kilometer path in about 39 days is not a well-defined and particular benefit to the public. We find the inventor’s comment about the time it may take to reduce the claimed invention to practice (i.e., at least a period of 10 years) in the Appeal Brief, as relied on supra, is insufficient to establish that the claimed invention must be subject to further research. Finally, we address Appellant’s submission that the PTAB Board has already decided this issue. In Appeal No. 2016-006818 (“2016 Dec.”), we determined that “the Examiner’s sole reliance on a text book from 1974 (which does not state that MHD technology is not theoretically possible) is Appeal 2020-003919 Application 13/584,574 12 insufficient evidence to show that one of ordinary skill in the art would reasonably doubt the asserted utility [of the claimed invention], or that as of the date of Appellant’s invention, the statement in the 1974 reference remained true.” 2016 Dec. 5–6. We also determined, as here, that the Examiner “fails to address the claimed subject matter or the description from Appellant’s Specification with any particularity” to establish that the claimed invention lacked either a credible or well-defined utility. Id. at 6. With respect to Appeal No. 2018-008255 (“2018 Dec.”), we addressed the Examiner’s unsupported finding that the claimed invention failed to account for the weight of the craft, and therefore, similar to the argument presented here, the Examiner’s conclusion that the claimed invention would require thrust magnitudes greater than previously accomplished. 2018 Dec. 3–6. We also did not agree that the Examiner established that the claimed rocket thrust involved implausible scientific principles and would necessarily be harmful to the astronauts. Id. at 7. Accordingly, on the record before us, we do not sustain the Examiner’s rejection of claims 1–4, under 35 U.S.C. § 101, as not being supported by a specific or substantial asserted or well-defined utility. Rejection II The Examiner finds that “because the claimed invention is not supported by either a specific and substantial asserted utility or a well- established utility for the reasons set forth [with respect to Rejection I supra], the [S]pecification does not enable any person skilled in the art clearly to know how [to] use the claimed invention.” Final Act. 6. Because we disagree that the Examiner has established that the claimed invention is not supported by a specific and substantial utility or a Appeal 2020-003919 Application 13/584,574 13 well-established utility for the reasons set forth supra, we find that the Examiner has not established a lack of enablement of the claimed invention. Accordingly, we do not sustain the Examiner’s rejection of claims 1– 4, under 35 U.S.C. § 112, first paragraph, as failing to comply with the enablement requirement. Rejection III The Examiner finds that claims 1–4 fail to comply with the written description requirement because “[a]t the time of the invention and to date there is not a system with the launch capabilities to get a 500,000 lbs rocket into space and away from Earth’s gravitational pull.” Final Act. 6–7 (citing MPEP § 2163.02 (“an objective standard for determining compliance with the written description requirement is, ‘does the description clearly allow persons of ordinary skill in the art to recognize that he or she invented what is claimed’” (citing In re Gosteli, 872 F.2d 1008, 1012 (Fed. Cir. 1989)); see also Ans. 7 (“since no system has been developed to perform the claimed method, the [S]pecification cannot and does not describe the invention in such a way as to reasonably convey to one skilled in the relevant art that the inventor . . . had possession of the claimed invention”). The Examiner concludes that “a great deal of speculation is required in this case,” and therefore, the written description requirement “has not been met.” Final Act. 7. Appellant argues that “[t]he Examiner simply provides no evidentiary support for [the Examiner’s] conclusions.” Appeal Br. 34. Appellant also submits that “[i]n the instant situation, . . . the [S]pecification is a constructive reduction to practice.” Reply Br. 28. Appeal 2020-003919 Application 13/584,574 14 The specification of a patent as filed must “contain a written description of the invention.” 35 U.S.C. § 112. A specification has an adequate written description when it “reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date” of the patent. Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). “[T]he test requires an objective inquiry into the four corners of the specification from the perspective of a person of ordinary skill in the art .... [to] show that the inventor actually invented the invention claimed.” Id. We are persuaded by Appellant’s argument. Here, the Examiner fails to provide, with any specificity, which recitations of the claimed invention require speculation—aside from the preamble, as addressed above, such that the written description fails to reasonably convey to those skilled in the art that this inventor failed to have possession of the claimed subject matter as of the filing date. Accordingly, we do not sustain the Examiner’s rejection of claims 1– 4, under 35 U.S.C. § 112, first paragraph, for failing to comply with the written description requirement. Rejection IV During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation standard, claim terms are given their ordinary and customary meaning as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Appeal 2020-003919 Application 13/584,574 15 Claim 1: “in about 39 days” The Examiner finds that the recitation of “in about 39 days” renders claim 1 indefinite, because “the [S]pecification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.” Final Act. 7; id. (“[o]ne skilled in the art would not know how close to 39 days the trip must be to meet the limitations as claimed”). Appellant merely points to the disclosures in the Specification that refer to “[an] earth orbit to a planetary landing [traveling] a direct path in about 39 days.” Appeal Br. 45 (citing Spec., pp. 9, 10, 24, 48, 65, 66, 74, 75, 81, 87, 89, 92, 98, 101, 106). When “about” is used as part of a numeric range, “the use of the word ‘about,’ avoids a strict numerical boundary to the specified parameter. Its range must be interpreted in its technologic and stylistic context.” Cohesive Tech. Inc. v. Waters Corp., 543 F.3d 1351, 1368 (Fed. Cir. 2008); see also Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1217 (Fed. Cir. 1995) (“[T]he word ‘about’ does not have a universal meaning in patent claims, and [its] meaning depends on the technological facts of the particular case.”). Claim 1 recites, in relevant part, “[a] method of earth orbit to planetary landing, round trip mission . . . that travels a direct about 75 million kilometer path in about 39 days.” The Specification discloses that, with respect to a planetary landing relative to Mars, [t]he starting point in the mission analysis is noting that the time and distance depends on the Earth and Mars orbits. . . . [A]bout every two years, Earth and Mars are in opposition (nearest to each other) with distance[s] ranging from about 50 to 100 million Appeal 2020-003919 Application 13/584,574 16 km, and Martian retrograde motion lasting about 70 days. An average distance of 75 million km, (7.5 x 1010 meters) and a transit time of 39 days (3,369,600 seconds) are selected as a mean trip of about one-month each way. Spec. 87:8–13 (emphasis added). Thus, we interpret “about 39 days” to mean “about one-month,” wherein a month may be 28 to 31 days, such that a standard for ascertaining the requisite degree of “about,” in this context, is plus or minus up to 11 days. Accordingly, we do not sustain the Examiner’s rejection of claim 1, and claims 2–4 depending therefrom, as indefinite, based on the recitation of “in about 39 days.” Claim 1: “earth orbit to planetary landing, round trip mission” The Examiner finds that “it is unclear if the 39 days refers to only the planetary landing or if it includes the return trip as well,” and that such a claim construction directly affects the claim limitations involving thrust and travel time. Final Act. 8; see also Ans. 7 (“The preamble of the claim refers to ‘round trip mission’ which could lead a person to believe that the ‘about 39 days’ is referring to a return trip as well.”). Appellant argues that “the 39 days refers to the trip to the planetary landing,” and that “one of ordinary skill in the art would understand that the method of earth orbit to planetary landing would travel a direct path in about 39 days.” Appeal Br. 45 (citing Spec., pp. 9, 10, 24, 48, 65, 66, 74, 75, 81, 87, 89, 92, 98, 101, 106). Claim 1 recites, in relevant part, “[a] method of earth orbit to planetary landing, round trip mission . . . that travels a direct about 75 million kilometer path in about 39 days.” The Specification’s consistent description of 39 days as relating to a direct, one-way path to Mars. See, Appeal 2020-003919 Application 13/584,574 17 e.g., Spec. 9:1–5 (“[a]s demonstrated in the massive NASA NERVA studies, the nuclear-hydrogen rocket to Mars would take 6 months to get there,” however, “[i]t is disclosed herein with a MHD generator-accelerator it is possible to accomplish this in 39 days with nuclear only”). Although during prosecution, a claim is properly rejected as indefinite if it is “amenable to two or more plausible claim constructions,” (Ex parte Miyazaki, 2008 WL 5105055 at *5 (BPAI Nov. 19, 2008) (precedential)), here, we find that, in view of the Specification, claim 1’s reference to “about 39 days” refers to the recited earth orbit to planetary landing, and not the recited round trip. Accordingly, we do not sustain the Examiner’s rejection of claim 1, and claims 2–4 depending therefrom, as indefinite, based on the recitation of “earth orbit to a planetary landing, round trip mission.” Claim 1: “steam” The Examiner finds that there is insufficient antecedent basis for the recitation of “steam” in claim 1. Final Act. 8; see also Ans. 8 (“No steam is positively recited previously and therefore ‘the steam’ lacks antecedent basis.”). Claim 1 recites, in relevant part, “dissociating water by nuclear reaction, wherein the dissociated water and steam after heating by the 3000°K pebble bed nuclear reactor flows into a pre-combustion chamber to completely dissociate the water.” Appellant submits that the claim term “steam” does not require antecedent basis because this is “the first recitation of this [claim term].” Appeal Br. 45–46. The Specification discloses that “[a] nuclear reactor would be used to heat the water-steam to 3000°K.” Spec. 78:23. Thus, we construe claim 1 Appeal 2020-003919 Application 13/584,574 18 to imply that the “water first heated in a 3000°K pebble bed nuclear reactor,” as claimed, results in “dissociated water and steam,” as claimed, wherein as argued by Appellant, the recitation of steam is introduced for the first time into claim 1 and does not require antecedent basis. (Emphasis added). Accordingly, we do not sustain the Examiner’s rejection of claim 1, and claims 2–4 depending therefrom, as indefinite, based on the recitation of “steam.” Claim 1: “injecting supplemental hydrogen” The Examiner finds that the claim language “injecting supplemental hydrogen” is indefinite because “[i]t is unclear what the hydrogen is supplementing since no other hydrogen is previously claimed.” Final Act. 8. Appellant argues that the claimed supplemental hydrogen “refers to hydrogen which is injected in the combustor,” as compared to “dissociated hydrogen.” Appeal Br. 46 (citing Spec., p. 106). The Specification discloses, with reference to Figure 1, that The oxygen to react with the Be is supplied by water pressurized to 100 atm, and dissociated by the non-equilibrium LeChatelier’s principle by heating in the nuclear reactor to 3000°K and transferred to a pre-Beryllium combustion chamber with added Be injected into the pre-combustion chamber where Be is also injected to dissociate the water and heat the H2 released is this chamber from the H2O and further heat this H2 to 6000°K . . . . Please note that Figure 1 shows the liquid hydrogen, as opposed to the H2 from the water, is injected into both the 1st and the 2nd combustion chamber only where it enters at 3000°K from the nuclear reactor. This additional H2 is needed because the H2 from the water is inadequate to provide the needed thrust for power[ing] the rocket. Spec. 106:1–13 (emphasis added). Thus, the Specification supports Appellant’s argument that claim 1, when read in light of the Specification, Appeal 2020-003919 Application 13/584,574 19 implies that hydrogen is produced by “dissociating water by nuclear reaction” (i.e., also recited in claim 1 as “dissociated hydrogen”), which is a claim term distinguishable from the “injecting supplemental hydrogen.” In other words, “injecting supplement hydrogen” means injecting hydrogen in addition to the hydrogen resulting from the dissociation of the water. Accordingly, we do not sustain the Examiner’s rejection of claim 1, and claims 2–4 depending therefrom, as indefinite, based on the recitation of “injecting supplemental hydrogen.” Claim 1: “dissociated hydrogen” The Examiner finds that the recitation of “dissociated hydrogen” in claim 1 lacks antecedent basis. Appellant argues that the claim term “dissociated hydrogen” does not lack antecedent basis because this is “the first recitation of this limitation” in claim 1. As explained supra, we find that claim 1 implies that “the dissociated water” results in dissociated oxygen and dissociated hydrogen, such that the recitation of claim 1 of “dissociated hydrogen” is the first time the dissociated hydrogen (i.e., hydrogen dissociated from the water) is referred to specifically in claim 1, as argued by Appellant. Accordingly, we do not sustain the Examiner’s rejection of claim 1, and claims 2–4 depending therefrom, as indefinite, based on the recitation of “dissociated hydrogen.” Claim 4: “the hydrogen” Claim 4 recites, in relevant part, wherein the hydrogen flows axially into a second stage combustor chamber of the two stage cyclone combustor and mixes with additional injected hydrogen, and the hydrogen exits Appeal 2020-003919 Application 13/584,574 20 the two stage cyclone combustor and enters the gas dynamic nozzle wherein cesium in concentrations from 0.1% to 1%, is injected . . . and expand the hydrogen to exit into outer Space. Appeal Br. 51–52 (Claims App.). The Examiner finds that the recitation of “the hydrogen” in claim 4 is indefinite because the claim term lacks antecedent basis. Final Act. 8. Appellant argues that “the hydrogen” recited in claim 4 is “the same hydrogen” as recited in claim 1. Appeal Br. 47. We are not persuaded by Appellant’s argument, because as discussed supra, claim 1 recites dissociated hydrogen, as well as supplemental hydrogen. Further, claim 4 depends from claim 3, which recites “all the hydrogen.” Appeal Br. 51. Thus, we agree with the Examiner that the recitation of “the hydrogen” is unclear. Accordingly, we sustain the Examiner’s rejection of claim 4, as indefinite, based on the recitation of “the hydrogen.” Claim 4: “electrode power output wires” Claim 4 recites, in relevant part, “wherein the linear Faraday MHD generator channel of the MHD generator-accelerator operates under equilibrium conductivity with the cesium seeded hydrogen, and whose electrode power output wires of the MHD generator channel are connected, in a diagonal mode, to anodes and cathodes of a coaxial supersonic, non- equilibrium conductivity . . . .” Appeal Br. 51 (Claims App.) (emphasis added). The Examiner finds that “[t]here is insufficient antecedent basis for [electrode power output wires] in the claim.” Final Act. 8. Appeal 2020-003919 Application 13/584,574 21 Appellant argues that the claim term “electrode power output wires” does not lack antecedent basis because this is “the first recitation of this limitation” in claim 4. Appeal Br. 48. We agree. Accordingly, we do not sustain the Examiner’s rejection of claim 4, as indefinite, based on the recitation of “electrode power output wires.” CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4 101 Utility 1–4 1–4 112, first paragraph Enablement 1–4 1–4 112, first paragraph Written Description 1–4 1–4 112, second paragraph Indefiniteness 4 1–3 Overall Outcome 4 1–3 AFFIRMED IN PART 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).