Ex Parte Evans et al

Patent Trial and Appeal BoardApr 8, 2016

12706166 (P.T.A.B. Apr. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 121706,166 02/16/2010 26353 7590 04/12/2016 WESTINGHOUSE ELECTRIC COMPANY, LLC 1000 Westinghouse Drive Suite 141 Cranberry Township, PA 16066 Paul Marcus Evans 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 ATTORNEY DOCKET NO. CONFIRMATION NO. ARF2008-020 1124 EXAMINER O'CONNOR, MARSHALL P ART UNIT PAPER NUMBER 3646 NOTIFICATION DATE DELIVERY MODE 04/12/2016 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): guerral@westinghouse.com spadacjc@westinghouse.com coldrerj@westinghouse.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte PAUL MARCUS EVANS, RICHARD P. BRODERS, MICHAEL ANTHONY MARZEAN, MICHAEL WINEGARDNER, and ADOLFO REP ARAZ Appeal2014-002713 Application 12/706, 166 Technology Center 3600 Before JENNIFER D. BAHR, JAMES P. CALVE, and GEORGE R. HOSKINS, Administrative Patent Judges. HOSKINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Paul Marcus Evans et al. ("Appellants") 1 appeal under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting claims 1, 2, 4--6, 9, 11, 12, 14-- 16, and 19 in this application. The Board has jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 The Appeal Brief identifies Westinghouse Electric Company LLC as the real party in interest. Br. 2. Appeal2014-002713 Application 12/706, 166 CLAIMED SUBJECT MATTER Claims 1 and 11 are independent. Claim 1 illustrates the claimed subject matter, and it recites: 1. A nuclear fuel assembly grid comprising: a first plurality of spaced, parallel, elongated straps; a second plurality of spaced, parallel, elongated straps positioned orthogonal to said first plurality of spaced, parallel, elongated straps and aligned in a regular lattice pattern so that the intersection of each set of four adjacent straps defines a cell, some of which support fuel rods, with an extent of each of the first and second straps that border each cell forming a wall of the cell; wherein at least one wall of the cells that support fuel rods has a vertically elongated spring that extends into the cell and is only supported by the wall at an upper and lower portion of the extent of the spring into the cell, the vertically elongated spring having a vertical slit that separates a most extended portion of the spring into two vertically oriented ligaments with a most extended portion of the ligaments being rounded in two directions to provide two. coplanar. point contacts of support for a fuel rod. Appeal Br. 10 (Claims App., emphasis added). REJECTION ON APPEAL Claims 1, 2, 4---6, 9, 11, 12, 14--16, and 19 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Petit (US 5,091,145, iss. Feb. 25, 1992) and Kang (US 6,650,723 Bl, iss. Nov. 18, 2003). ANALYSIS A. "Double Patenting" and Substantially Duplicate Claims In a section entitled "Double Patenting," the Final Office Action states: "[S]hould claims 1, 2, 4---6 and 9 be found allowable, claims 11, 12, 2 Appeal2014-002713 Application 12/706, 166 14--16 and 19 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof." Final Act. 2-3 (citing MPEP Â§ 706.03(k)). Appellants seek our review of that decision, which Appellants characterize as a provisional double patenting rejection. Br. 3-5. We disagree with Appellants' characterization of the Examiner's decision, despite that the pertinent section of the decision is entitled "Double Patenting." In relying on 37 C.F.R. Â§ 1.75(b )2 and MPEP Â§ 706.03(k), the Examiner is indicating an intent to object to (not to reject) claim 11 and its dependent claims. Review of a claim objection may be had by petition to the Director under 3 7 C.F .R. Â§ 1.181, not appeal to the Board. See 3 5 U.S.C. Â§ 134(a) ("An applicant for a patent, any of whose claims has been twice rejected, may appeal ... to the Patent Trial and Appeal Board .... ") (emphasis added); 37 C.F.R. Â§1.181(a)(l); see also In re Berger, 279 F.3d 975, 984--85 (Fed. Cir. 2002) (discussing, in general, review by petition and by appeal). We, therefore, lackjurisdiction to review claim objections. B. Obviousness based on Petit and Kang In rejecting claim 1 as unpatentable over Petit and Kang, the Examiner finds Petit's spring 15, as illustrated in Figure 2, has a curved portion 22 exhibiting the claimed "most extended portion ... being rounded in two directions to provide" a point contact of support for a fuel rod. Final Act. 4; Ans. 2-3. In particular, the Examiner states curved portion 22 "is rounded in two directions (From the extended most portion, the spring is rounded in a first direct[ ion] toward the top of the spring [15] and a second 2 The Examiner does not specify the pertinent sub-section of Rule 1. 7 5, but from the context of the Examiner's decision, it is clear that sub-section (b) is at issue here. 3 Appeal2014-002713 Application 12/706, 166 direction toward the bottom of the spring [ 15]) providing point contact support for a fuel rod." Ans. 2-3. The Examiner, however, acknowledges Petit' s spring 15 lacks the claimed "vertical slit that separates" the most extended portion 22 "into two vertically oriented ligaments ... to provide two, coplanar, point contacts of support for a fuel rod." Final Act. 5. The Examiner finds Kang discloses, in Figures 10-14, a spring for supporting a fuel rod 325, the spring having a vertical slit 350 that separates a most extended portion of the spring into two ligaments that are rounded in two directions to provide two, coplanar, point contacts of support for the fuel rod. Final Act. 5; Ans. 3; see also Kang, 6:32--42, 10:7-17. The Examiner determines it would have been obvious to modify Petit's spring 15 to include a vertical slit, in view of Kang, "for the predictable result of decreasing the stiffness of the positioning springs by 1/3 times, and increase[ing] the elastic range of the springs two times in comparison with a grid not having such slots." Final Act. 6; Ans. 3 (citing Kang, 10:7-17). Appellants contend the obviousness rejection should be reversed because neither Petit nor Kang discloses, as recited in claim 1, a spring having a vertical slit separating the spring into two ligaments, with the ligaments being rounded in two directions to provide two, coplanar, point contacts of support for a fuel rod. Br. 5-9. Concerning Kang, Appellants assert: "The stated objective of Kang et al. is to enlarge the fuel element contact area (column 11, starting at line 33), rather than establishing point contact." Id. at 7. Appellants' argument is not persuasive. The Examiner explains how the most extended portion 22 of Petit's spring 15 is rounded in two directions to provide a point contact support for a fuel rod. Ans. 2-3; see 4 Appeal2014-002713 Application 12/706, 166 Petit Figs. 1-2. Appellants' conclusory challenges to the prior art as failing to disclose a rounding in two directions fail to address the Examiner's specific finding that Petit's Figure 2 discloses "[f]rom the extended most portion" of curved portion 22, "the spring is rounded in a first direct[ion] toward the top of the spring and a second direction toward the bottom of the spring." Ans. 2-3. We perceive no error in that finding based on Appellants' arguments. 3 The Examiner's finding establishes that the slotted sheet in Kang, which is curved similarly to Petit's extended portion 22, provides a fuel support spring that is rounded in two directions. See Kang, Figs. 11-14, 6:32--42, 10:7-17. It is further clear that the vertical slit 350 of Kang's spring provides the claimed two, coplanar, point contacts of support for a fuel rod. In particular, Kang indicates that each slit/slot 350 is provided "at a position, where the strip [spring] comes into contact with a fuel rod while supporting the fuel rod," so the spring "is desirably and elastically opened at a position around each slot to support a fuel rod at two support surfaces when the spring supports the fuel rod." Kang, 11 : 3 3--4 2 (emphases added). This is shown, for example, in Kang's Figures 11-14. Kang further states: "[E]ach positioning spring provides two support surfaces for the fuel rod, 3 Appellants' Specification states: "The central vertical slit 38 thus divides the central vertical portion of the spring into two ligaments 34 which are rounded in both a horizontal and vertical direction to provide two point support contacts per spring for the fuel rod." Spec. i-f 39 (emphasis added). Claim 1, by contrast, recites only "two directions," without specifying horizontal and vertical. Appellants have not argued that a broadest reasonable construction of the claimed "two directions" in light of the Specification must be limited to horizontal and vertical. 5 Appeal2014-002713 Application 12/706, 166 thus enlarging the fuel rod contact area of the grid and effectively protecting the fuel rod from a fretting corrosion." Kang, 11 :42--45. Appellants read the "enlarge[ ed] ... contact area" of this sentence as indicating Kang lacks the claimed "point" contacts of support. Br. 6. We disagree, because in context (i.e., Kang, 11: 33--45), the enlarged contact area refers to the two points of contact provided by adding a slit to the spring, as opposed to one point without the slit. We are thus not persuaded of error in the Examiner's finding that Kang discloses a spring comprising a vertical slit separating the spring into two ligaments, with a most extended portion of the ligaments being rounded in two directions to provide two, coplanar, point contacts of support for a fuel rod. Appellants further contend "it is not at all clear how the structure of Kang et al. could be applied to Petit and the Examiner has not given any insight into how this could be done other than to say it was obvious." Br. 7. According to Appellants, "Petit and Kang et al. are mostly focusing on entirely different issues, even though those issues are dealt with in a fuel assembly grid environment." Id. Appellants conclude "[t]he Examiner's articulated reasoning does not have a rational underpinning to support the legal conclusion of obviousness." Id. at 7-8. These arguments are not persuasive. Both Petit and Kang are directed to springs for frictionally supporting fuel rods within cells formed by intersecting plates in a nuclear fuel assembly. Petit, Abstract, 2:35--45; Kang, 8:5-13, 10:7-17. A person of ordinary skill in the art would have recognized that Kang's description of "fretting wear" problems encountered by such friction-fit arrangements (Kang 3:63--4:15) applies to the design of Petit. The Examiner's determination that it would have been obvious to 6 Appeal2014-002713 Application 12/706, 166 modify Petit' s springs 15 to include vertical slits, in view of Kang, for the predictable result of decreasing the stiffness and increasing the elastic range of the springs, as expressly taught by Kang, is supported by a preponderance of the evidence. Ans. 3. For the foregoing reasons, we are not persuaded of Examiner error in rejecting claim 1 as unpatentable over Petit and Kang. Appellants do not present additional arguments for the other claims. See Br. 5-8, 9 (arguing "[c]laims 2, 4---6, 9, 12, 14--16, and 19 distinguish for at least their dependency"). We, therefore, sustain the rejection of claims 1, 2, 4---6, 9, 11, 12, 14--16, and 19 as unpatentable over Petit and Kang. DECISION The rejection of claims 1, 2, 4--6, 9, 11, 12, 14--16, and 19 as unpatentable over Petit and Kang is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended, under 37 C.F.R. Â§ l .136(a)(l )(iv). AFFIRMED 7