Ex Parte Ahlfeld et al

Patent Trial and Appeal Board

Feb 25, 2014

12152904 (P.T.A.B. Feb. 25, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/152,904 05/15/2008 Charles E. Ahlfeld 0707-032-002-000000 6457
44765 7590 02/26/2014
THE INVENTION SCIENCE FUND
CLARENCE T. TEGREENE
11235 SE 6TH STREET
SUITE 200
BELLEVUE, WA 98004
EXAMINER
KEITH, JACK W
ART UNIT PAPER NUMBER
3646
MAIL DATE DELIVERY MODE
02/26/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CHARLES E. AHLFELD,
JOHN ROGERS GILLELAND,
RODERICK A. HYDE, MURIEL Y. ISHIKAWA,
DAVID G. MCALEES, NATHAN P. MYHRVOLD,
THOMAS ALLAN WEAVER, CHARLES WHITMER, and
LOWELL L. WOOD, Jr.
____________________

Appeal 2012-000828
Application 12/152,904
Technology Center 3600
____________________

Before: MICHAEL L. HOELTER, LYNNE H. BROWNE, and
SCOTT A. DANIELS, Administrative Patent Judges.

BROWNE, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-000828
Application 12/152,904
2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejections of claims
1-3, 8-19, 40, 43-45, and 47-57. Claims 5-7, 20-39, 41, 42, 58-89, and 104-
115 are canceled. Claims 4, 46, and 90-103 are withdrawn from
consideration. We have jurisdiction under 35 U.S.C. § 6(b).1
We AFFIRM.

CLAIMED SUBJECT MATTER
The claims are directed to a heat pipe fission fuel element. Claims 1
and 40 are independent. Claim 1 is reproduced below:
1. A nuclear fission fuel element comprising:
nuclear fission fuel material defining a cavity therein;
and
at least one heat pipe, at least a portion of which is
disposed within the cavity in the nuclear fission fuel
material, the heat pipe including a capillary structure, at
least a portion of the capillary structure being defined in a
surface of at least a portion of the cavity defined in the
nuclear fission fuel material.

PRIOR ART
Byrd
Fiebelmann
Hampel
Rybnikov
Ball
Gou
US 3,535,562
US 3,668,070
US 4,851,183
US 5,353,321
US 5,408,510
US 5,684,848
Oct. 20, 1970
Jun. 6, 1972
Jul. 25, 1989
Oct. 4, 1994
Apr. 18, 1995
Nov. 4, 1997

1Appellants also seek review of the Examiner's objection to the drawings.
App. Br. 7. The issue of compliance with 37 C.F.R. § 1.83(a) relates to a
petitionable matter and not to an appealable matter. See Manual of Patent
Examining Procedure (MPEP) §§§ 1002, 1002.02(c), and 1201.
Accordingly, we will not review the first issue raised by Appellants on pages
9-12 of the Appeal Brief.
Appeal 2012-000828
Application 12/152,904
3
Peterson US 2008/0069289 A1 Mar. 20, 2008

GROUNDS OF REJECTION
1. Claims 1-3, 8-19, 40, 43-45, and 47-57 stand rejected under 35 U.S.C.
§102(a) as being anticipated by Peterson.
2. Claim 1 stands rejected under 35 U.S.C. §102(b) as being anticipated
by Ball, Byrd, Fiebelmann, Rybnikov, or Hampel.
3. Claims 2 and 3 stand rejected under 35 U.S.C. §102(b) as being
anticipated by Ball, Fiebelmann, or Hampel.
4. Claims 8, 40, 47, and 51-55 stand rejected under 35 U.S.C. §102(b) as
being anticipated by Byrd or Hampel.
5. Claims 9, 10, 12-19, 48, 49, and 55-57 stand rejected under 35 U.S.C
§102(b) as being anticipated by Byrd.
6. Claims 12-16, 44, and 45 stand rejected under 35 U.S.C §102(b) as
being anticipated by Hampel.
OPINION
As Appellants raise substantially the same arguments with respect to
all of the prior art references applied by the Examiner (see Ans. 25-103;
Reply Br. 31-102) we will address these repetitive arguments together.
Further, in the interest of efficiency we will cite only to the first occurrence
of an argument. Arguments pertaining to individual prior art references will
be addressed separately. We select independent claim 1 as the illustrative
claim. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
Arguments Applicable to All Rejections
Consideration of the Application Disclosure:
Appellants argue that “the Examiner erred because he interpreted
claim terms without consideration of the application disclosure.” App. Br.
Appeal 2012-000828
Application 12/152,904
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25. In response to this argument, the Examiner explains how he considered
the Specification in interpreting the claims and how he considered the
elected drawing Figure 2C. See Ans. 13-14.
In response to the Examiner’s explanations, Appellants contend that
“the Examiner has ignored features in the drawings (which are part of the
specification), [and] has ignored interpretive guidance of the actual teaching
of Appellants’ application specification.” Reply Br. 31.
Appellants’ contentions are not well taken. “[T]he PTO applies to the
verbiage of the proposed claims the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in applicant’s specification.” In re Morris, 127 F.3d 1048, 1054
(Fed. Cir. 1997). During examination of a patent application, pending
claims are given their broadest reasonable construction consistent with the
specification. In re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am.
Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The ordinary
and customary meaning of a claim term is the meaning that the term would
have to a person of ordinary skill in the art in question at the time of the
invention. Phillips v. AWH Corp., 415 F.3d 1303, 1319 (Fed. Cir. 2005) (en
banc).
Furthermore, to read a claim in light of the specification, one must
interpret limitations explicitly recited in the claim, without reading
limitations from the specification into the claim, to thereby narrow the scope
of the claim by implicitly adding disclosed limitations that are not recited in
the claim. In re Prater, 415 F.2d at 1393. Although the claims are
interpreted in light of the specification, limitations from the specification
Appeal 2012-000828
Application 12/152,904
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must not be read into the claims. In re Van Geuns, 988 F.2d 1181 (Fed. Cir.
1993) (emphasis added).
The Examiner considered the Specification and the Drawings in
interpreting the claims as discussed supra. Appellants have not explained
why the Examiner’s interpretation is inconsistent with the Specification or
the Drawings. Rather, Appellants argue that the Examiner did not read
limitations from the Specification and the Drawings into the claims. App.
Br. 27, 29. Accordingly, Appellants have not apprised us of error.
Definition of “Defined”:
In the Final Office Action, the Examiner found that “Merriam-
Webster’s Collegiate Dictionary defines the term, ‘define,’, as a) ‘to make
distinct, clear or detailed, esp. in outline’; or b) ‘to fix or mark the limits of.’
Final, 3. Appellants challenge the Examiner’s reliance upon a dictionary
definition and contend that “the Examiner erred because he interpreted claim
terms without consideration of the application disclosure.” App. Br. 25.
In response to these arguments, the Examiner notes that “[A]ppellant
did not provide his definition of the term [define]” and that it was proper for
the Examiner to apply the ordinary and customary meaning to this term.
Ans. 14. We agree. In determining the ordinary and customary meaning of
the claim term as viewed by a person of ordinary skill in the art, it is
appropriate to consult a general dictionary definition of the word for
“guidance.” Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir.
2010)(citing Phillips c. AWH Corp., 415 F.3d 1303, 1322-23 (Fed. Cir.
2005)(en banc)). Moreover, Appellants do not explain why the proffered
definition of “defined” is not consistent with the Specification. Accordingly,
the Examiner’s reliance upon a general dictionary definition of the word
“defined” for guidance does not constitute error.
Appeal 2012-000828
Application 12/152,904
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Appellants further contend that “the Examiner made up his own
definition for ‘defined’ and thus has relied solely on ‘common knowledge’
in the art without evidentiary support in the record as the principal evidence
upon which a final rejection was based.” Reply Br. 35. Appellants’ further
argument is not persuasive as it is direct to the portion of the Examiner’s
response where the Examiner attempted to apply the language to the
proffered definition of the claim. Ans. 14. Although, possibly not as
artfully drafted as Appellant might wish, this portion of the Examiner’s
response to Appellants’ arguments is not considered to constitute a “made
up” definition of “defined.”
For these reasons, Appellant’s arguments are not persuasive. We
agree with and adopt the definition of “defined” proffered by the Examiner.
Breadth of the Examiner’s Interpretation:
Appellants further argue that “the Examiner's interpretation . . . of the
claim term ‘at least a portion of the capillary structure being defined in a
surface of at least a portion of the cavity defined in the nuclear fission fuel
material’ is so broad that it eliminates nothing whatsoever from its reach.”
App. Br. 30. In support of this argument, Appellants contend that using the
Examiner’s interpretation “the surface of the planet Earth also ‘marks a limit
or boundary beyond which capillary structure of heat pipe 30 cannot exist at
any time, because of the confines of the heat pipe wall.’2 App. Br. 31.
Appellants’ argument is inapposite as the claim construction proposed by
Appellant is not supported by the Specification.
No Teaching or Suggestion:

2 We note that Appellants appear to argue that their claim language is
unreasonably broad; however, we decline to consider whether or not a
rejection under 35 U.S.C. § 112, 2nd paragraph is appropriate as the
Examiner has not set forth such a rejection.
Appeal 2012-000828
Application 12/152,904
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Appellants argue that the Examiner has not set forth a rationale that
the prior art references “teach[] or suggest[] ‘at least a portion of the
capillary structure being defined in a surface of at least a portion of the
cavity defined in the nuclear fission fuel material’.” See App. Br. 34.
Appellants’ argument is inapposite as the rejections set forth by the
Examiner are a rejections under 35 U.S.C. § 102.
Anticipation by Peterson
Claims 1-3, 8-19, 40, 43-45, and 47-57
In addition to the arguments discussed supra, Appellants argue that:
Peterson’s “stainless steel screen positioned along the inside
diameter of the pipe to act as a wick for the potassium working
fluid” - that is, a capillary structure defined inside the heat pipe
which in turn protrudes into nuclear fission fuel material -- does
not teach or suggest “at least a portion of the capillary structure
being defined in a surface of at least a portion of the cavity
defined in the nuclear fission fuel material” as recited in
independent [c]laims 1 and 40.
App. Br. 35.
Appellants have not explained why Peterson’s stainless steel screen
does not read on the capillary structure as claimed. We note that claim 1
does not preclude a capillary structure inside the heat pipe. Rather, this
structure is precisely what is described in Appellants’ Specification on page
5 in lines 21-23, the portion of the Specification that Appellants identify as
providing interpretive guidance regarding the claim limitation in question.
App. Br. 27. Accordingly, Appellants’ argument is not persuasive.
For these reasons, we sustain the Examiner’s rejection of claim 1 in
view of Peterson, and claims 2, 3, 8-19, 40, 43-45, and 47-57 fall therewith.
Anticipation by Ball
Claims 1-3
Appeal 2012-000828
Application 12/152,904
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In addition to the argument discussed supra, Appellants argue that:
Ball et al.’ s series of concentric cylinders – in which the heat
pipe 18 is radially spaced-apart from the nuclear fuel ring 22 by
(in order) the collector 28, the gap 30, and the emitter 20 -- does
not teach or suggest “at least one heat pipe, at least a portion of
which is disposed within the cavity in the nuclear fission fuel
material, the heat pipe including a capillary structure, at least a
portion of the capillary structure being defined in a surface of at
least a portion of the cavity defined in the nuclear fission fuel
material” as recited in independent Claim 1.

App. Br. 43.
We note that claim 1 does not preclude other structures between the
heat pipe and the fuel ring, and as such, Appellants have not explained why
Ball’s heat pipe does not read on the heat pipe as claimed. Accordingly,
Appellants’ argument is not persuasive.
For these reasons, we sustain the Examiner rejection of claim 1 in
view of Byrd, and claims 2 and 3 that fall therewith.
Anticipation by Byrd
Claims 1, 8-10, 12-19, 40-43, 47-49, and 51-57
In addition to the arguments discussed supra, Appellants argue that:
Byrd’s series of heat pipes 36, each of which is sealed at each
end and encloses a wick 44 and heat transfer fluid 46, that are
butted together end-to-end and that extend into a pressure
vessel to absorb heat from the heat source 12 does not teach or
suggest “at least a portion of the capillary structure being
defined in a surface of at least a portion of the cavity defined in
the nuclear fission fuel material” as recited in independent
Claims 1 and 40.
App. Br. 50.
We note that claim 1 does not preclude a sealed heat pipe or a series
of heat pipes, and as such, Appellants have not explained why Byrd’s wick
Appeal 2012-000828
Application 12/152,904
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does not read on the capillary structure as claimed. Furthermore, a sealed
heat pipe is described in the portion of Appellants’ Specification Appellants
identified as providing informative guidance as to the meaning of the
limitation in question. See App. Br. 27. Accordingly, Appellants’ argument
is not persuasive.
For these reasons, we sustain the Examiner’s rejection of claim 1 in
view of Byrd, and claims 8-10, 12-19, 40-43, 47-49, and 51-57 that fall
therewith.
Anticipation by Fiebelmann
Claims 1-3
In addition to the arguments discussed supra, Appellants argue that:
Fiebelmann et al.’s teaching that heat pipes that avoid touching
the fuel at any position does not teach or suggest “at least one
heat pipe, at least a portion of which is disposed within the
cavity in the nuclear fission fuel material, the heat pipe
including a capillary structure, at least a portion of the capillary
structure being defined in a surface of at least a portion of the
cavity defined in the nuclear fission fuel material” as recited in
independent Claim 1.
App. Br. 57.
We note that claim 1 does not require that the heat pipe touch the fuel,
and as such, Appellants have not explained why Fiebelmann’s heat pipe
does not read on the heat pipe as claimed. Accordingly, Appellants’
argument is not persuasive.
For these reasons, we sustain the Examiner’s rejection of claim 1 in
view of Fiebelmann, and claims 2 and 3 that fall therewith.

Appeal 2012-000828
Application 12/152,904
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Anticipation by Rybnikov
Claim 1
In addition to the arguments discussed supra, Appellants argue that
“the Examiner cited nothing in Rybnikov as support for any teaching in
Rybnikov of a ‘capillary structure[sic].’” App. Br. 68. In response to this
argument the Examiner finds that “Rybnikov clearly stated that his
electronic heat pipe is equivalent to and operates on the same principle as a
conventional heat pipe in a nuclear fuel (see col. 3, lines 62+). Ans. 16.
Based on this finding, the Examiner concludes that “not only does Rybnikov
meet the requirements of the MPEP, more importantly, his electronic heat
pipe reads on appellant's heat pipe, as recited in the claims.” Id. The fact
that Rybnikov calls his device a “heat pipe” does not make his device a
“heat pipe” in accordance with the ordinary and customary meaning of that
term. Further, the Examiner’s reasoning is flawed because the rejection is
based on anticipation, not obviousness.
For these reasons, we do not sustain the Examiner’s rejection of claim
1 in view of Rybnikov.
Anticipation by Hampel
Claims 1-3, 8, 12-16, 40-45, 47, and 51-55
In addition to the arguments discussed supra, Appellants argue that:
Hampel’s teaching of an array of heat pipes in which the
primary heat pipes extend into the core of the reactor and
remove heat directly therefrom (and that the evaporator sections
120 of the primary heat pipes are received within the reactor
core 100) does not teach or suggest “at least a portion of the
capillary structure being defined in a surface of at least a
portion of the cavity defined in the nuclear fission fuel
material” as recited in independent Claims 1 and 40.
App. Br. 77.
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Application 12/152,904
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Appellants have not explained why Hampel’s heat pipe does not read
on the heat pipe as claimed. Accordingly, Appellants’ argument is not
persuasive.
For these reasons, we sustain the Examiner’s rejection of claim 1 in
view of Hampel, and claims 2, 3, 8, 12-16, 40-45, 47, and 51-55 fall
therewith.
Obviousness over Byrd and Gou
Claims 11 and 50
In addition to the arguments discussed supra, Appellants argue that
“combining the inner sleeve made of stainless steel of Gou et al. with Byrd
does not overcome the above-noted deficiency of Byrd.” App. Br. 98.
Appellants’ argument is not persuasive as we do not find any
deficiency in the rejection based on Byrd. Accordingly, we sustain the
Examiner’s rejection of claims 50 and 11 over Byrd and Gou.
Obviousness over Byrd and Peterson
Claims 11 and 50
In addition to the arguments discussed supra, Appellants argue that
“combining the wick of stainless steel of Peterson with Byrd does not
overcome the above-noted deficiency of Byrd.” App. Br. 102.
Appellants’ argument is not persuasive as we do not find any
deficiency in the rejection based on Byrd. Accordingly, we sustain the
Examiner’s rejection of claims 50 and 11 over Peterson and Byrd.

DECISION
The Examiner’s rejection of claims 1-3, 5-19, 40-45, and 47-57 as
anticipated by Peterson is AFFIRMED.
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Application 12/152,904
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The Examiner’s rejection of claim 1 as anticipated by Ball, Byrd,
Fiebelmann, or Hampel is AFFIRMED.
The Examiner’s rejection of claim 1 as anticipated by Rybnikov is
REVERSED.
The Examiner’s rejection of claims 2 and 3 as anticipated by Ball,
Fiebelmann, or Hampel is AFFIRMED.
The Examiner’s rejection of claims 5-8, 40-43, 47, and 51-55 as
anticipated by Byrd or Hampel is AFFIRMED.
The Examiner’s rejection of claims 9, 10, 12-19, 48, 49, and 55-57 as
anticipated by Byrd is AFFIRMED.
The Examiner’s rejection of claims 12-16, 44, and 45 as anticipated
by Hampel is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2009).

AFFIRMED

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