James Noel et al.

Patent Trials and Appeals Board

Dec 2, 2020

2020003698 (P.T.A.B. Dec. 2, 2020)

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.
13/366,909 02/06/2012 James L. Noel 045271/09001 4601
131036 7590 12/02/2020
BWXT
c/o Nelson Mullins Riley & Scarborough, LLP
One Wells Fargo Center
301 South College Street, 23rd Floor
Charlotte, NC 28202
EXAMINER
WASIL, DANIEL D
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
12/02/2020 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):
ip@nelsonmullins.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES L. NOEL, ALAN SCOTT, and ROBERT A. GORDON
Appeal 2020-003698
Application 13/366,909
Technology Center 3600
Before DANIEL S. SONG, STEFAN STAICOVICI, and
ANNETTE R. REIMERS, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1–8, 10–12, 14–20, 22–27, and 30. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). The Appellant identifies the real party in interest as
BWXT Nuclear Energy, Inc. and Bechtel Power Corporation. Appeal Br. 1.
Appeal 2020-003698
Application 13/366,909
2
CLAIMED SUBJECT MATTER
The claims are directed to nuclear power facility. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. An apparatus comprising:
a nuclear island including at least a nuclear reactor;
a turbine island including at least a turbine building
housing at least one turbine driven by steam generated by the
nuclear reactor;
a steam line configured to flow steam from the nuclear
island to the turbine island, the steam line being at or below
ground level;
a protected area having a perimeter surrounded by at least
one fence, the at least one fence comprising a physical barrier
constructed to control access into the protected area; and
an isolation zone surrounding the protected area and
including intrusion detection devices configured to detect
unauthorized approach toward the protected area;
wherein the nuclear island is disposed inside the protected
area; and
wherein the turbine island is disposed outside of and
spaced apart from both the protected area and the isolation zone.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Niino US 5,053,188 Oct. 1, 1991
NPG NPG Learning
Services: General
Employee Training-
Protected Area Access
(Rev. 21).
May 2009
Benjamin Cipiti et al. Sandia Report:
Integrated Safeguards
& Security for Material
Protection, Accounting
and Control
Oct. 2009

Appeal 2020-003698
Application 13/366,909
3
OPINION
The Examiner rejects claims 1–8, 10–12, 14–20, 22–27, and 30 on
appeal under pre-AIA 35 U.S.C. § 103(a) as unpatentable over NPG in view
of Cipiti and Niino. Final Act. 2. The Examiner notes that NPG relates to
the Diablo Canyon Nuclear Power Plant, and relying on dictionary
definitions of the term “fence,” finds that NPG discloses “a protected area
which is bordered by a ‘fence’ XX” that “encloses the radiological control
area (RCA), [and] comprises physical barriers, e.g., ‘in the form of rope or
ribbon strung between stanchions.’” Final Act. 4, citing NPG p. 66, The
Oxford Dictionary, and The Merriam-Webster Dictionary. The Appellant
argues that “the ‘x’ shown on the figure of page 3 of NPG is not a fence or
physical barrier that is constructed to control access . . . but rather is merely
a designation for a radiological area marked by rope, ribbon, or tape that -
unlike a fence - can be crossed or moved readily by an individual.” Appeal
Br. 10.
We find this issue as to whether rope/ribbons strung between
stanchions constitutes a “fence comprising a physical barrier” to be moot in
view of the Examiner’s alternative reasoning that
if for some reason NPG’s XX barrier does not constitute a
“fence” . . . then it still would have been obvious to one of
ordinary skill in the art to have considered using a physical
(wire) fence in place of any ropes to improve the security level
of NPG’s protected area (which is bordered by the XX
markings). That is, it would have been obvious to the skilled
artisan to have replaced any ropes in NPG with a stronger
physical fence in order to counter a greater security (or
trespassing) threat.
Final Act. 5; see also Ans. 5.
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Application 13/366,909
4
In that regard, the Examiner also finds “Cipiti shows (Figure 4) that it
is well known in the art to use a double fence to secure an interior area of a
nuclear facility” and to include a Perimeter Intrusion Detection and
Assessment System (“PIDAS”) having intrusion detection devices such that
“[t]he skilled artisan would recognize that conventionally having the PIDAS
located in the area in between the double fence would enhance the ability to
thwart a security breach.” Final Act. 5, citing Cipiti, Fig. 4, p. 19.
Accordingly, the Examiner concludes that
modification of NPG to have replaced the XX barrier with a
double fence to provide an even greater security barrier to the
protected area, as suggested by Cipiti, would have been obvious
to one of ordinary skill in the art. Having the PIDAS in the area
in between the double fence, as also suggested by Cipiti, would
result in this area in between NPG’s double fence constituting
an isolation zone. As a result, NPG’s turbine island would be
located outside of this isolation zone.
Final Act. 5.
We agree with the Examiner’s findings and conclusion, and address
the Appellant’s arguments infra.
The Appellant asserts that “it would not be obvious to one of ordinary
skill in the art to mark an RCA with any radiological barriers other than
those approved within NPG, those being rope, ribbon, tape, etc.,” because “it
would be undesirable and possibly unsafe to unduly limit access to the RCA
[Radiological Controls Areas] by the above noted radiological workers.”
Appeal Br. 11. However, we agree with the Examiner that Appellant’s
argument “goes against the teachings of NPG, which desires to limit access
to the RCA,” “lacks evidentiary support and is without merit,” and that
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Application 13/366,909
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“[w]alking through an entry gate in a wire fence would be safer than
climbing over a rope fence.” Ans. 5.2
The Appellant also argues “NPG does not disclose that ‘the turbine
island is disposed outside of and spaced apart from both the protected area
and the isolation zone,’ wherein the protected area has ‘a perimeter protected
by at least one fence.’” Appeal Br. 9. However, NPG illustrates
radiological barriers “XX” between the turbine island and nuclear island
defining a protected area around the nuclear island. NPG, p. 3. In addition,
the rejection is based on “[m]odification of NPG to [] replace[] the XX
barrier with a double fence to provide an even greater security barrier to the
protected area, as suggested by Cipiti.” Final Act. 5; see also Ans. 5.
Accordingly, when NPG is modified in the manner suggested in the
rejection to include a double fence per Cipiti, an isolation zone would be
formed, and the turbine island would be disposed outside of and spaced apart
from both the protected area and the isolation zone. “Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.” In re
Merck, 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413,
425 (CCPA 1981).
The Appellant further asserts that “the perimeter designated by ‘x’ in
the figure on page 3 of NPG cannot be said to constitute the recited
protected area,” and that “turbine building (29) being outside of the

2 Indeed, although we do not specifically rely upon the following, NPG even
teaches “do not reach over or under barriers, imagine they are invisible walls
that reach from the ceiling to the floor,” thereby further supporting the
Examiner’s suggested modification. NPG, p. 66. We further note that the
Appellant’s argument appears to imply that its claimed fencing would be
“undesirable and possibly unsafe.”
Appeal 2020-003698
Application 13/366,909
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designated RCA does not satisfy the requirement that it be outside the
protected area.” Appeal Br. 10; see also Appeal Br. 12 (permanent RCA
“does not become a protected area within the teaching of NPG.”). However,
the basis for this assertion is not substantiated with persuasive reasoning or
explanation. To the contrary, NPG further discloses “XX” as “Permanent
RCA” that is enclosed by the rope or ribbon strung between stanchions,
thereby defining a protected area in which “[n]on-rad workers are never to
cross.” NPG, pg. 3, 66.
The Appellant also argues that “NPG does not disclose an isolation
zone surrounding the protected area in which the nuclear island is disposed.”
Appeal Br. 11. However, the Appellant again unpersuasively argues NPG
separately because in accordance with the rejection, the isolation zone is
formed by modifying NPG’s “XX” to be a double fence as taught in Cipiti.
See Final Act. 5; In re Merck, 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re
Keller, 642 F.2d 413, 425 (CCPA 1981).
The Appellant further argues that Cipiti only discloses “access to
protected areas be restricted with a fence or like structure,” and “does not
suggest defining RCAs with physical barriers, such as fences, that are
constructed to restrict access.” Appeal Br. 11. However, this argument is
unpersuasive in view of the Examiner’s articulated reasoning for the
modification to NPG, which is supported by rational underpinnings. See
Final Act. 5 (“the double fence would enhance the ability to thwart a
security breach.”); see also Ans. 5; KSR Int’l v. Teleflex, Inc., 550 U.S. 398,
418 (2007) (requiring “articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness”); id. (“the
analysis need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
Appeal 2020-003698
Application 13/366,909
7
and creative steps that a person of ordinary skill in the art would employ.”);
id. at 416 (“when a patent claims a structure already known in the prior art
that is altered by the mere substitution of one element for another known in
the field, the combination must do more than yield a predictable result.”).
The Appellant also argues that NPG discloses a protected area “along
the inside of the chain link fence” that includes white lines indicating an
isolation zone. Appeal Br. 12. According to the Appellant, “placing a
fenced-off area within a previously established protected area does not
render the portion of the original protected area that is outside the new fence
as an isolation zone,” and an isolation zone resulting from modifying NPG
would be “disposed inside the protected area, [whereas] isolation zone (34)
recited in claim 1 is disposed outside protected area (30).” Appeal Br. 12.
We do not find this line of Appellant’s argument persuasive because
as the Examiner explains,
The innermost portion of the double fence would surround the
protected area. Having a PIDAS (intrusion detection system) in
the interior area in between the double fence, as also suggested
by Cipiti, would result in this interior area (between NPG’s
double fence) constituting an isolation zone. . . . As a result,
NPG’s turbine island would be located outside of this isolation
zone. That is, NPG’s turbine island would be disposed outside
of both the protected area and the isolation zone.”
Ans. 5–6.
The Appellant finally argues that “one of ordinary skill in the art
would be motivated to maintain the turbine island contiguous with the
nuclear island inside both the protected area and the isolation zone” in order
to minimize heat loss, minimize reduction in efficiency, and to prevent loss
of heat sink event as discussed in the Specification. Appeal Br. 12–13.
However, we agree with the Examiner that
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Application 13/366,909
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One of ordinary skill in the art would realize that different
portions of a nuclear plant can be positioned at various
distances from each other, necessarily amounting to certain
design characteristics (e.g., based on the site terrain; foundation
support ability; etc.) obviously more favorable to use of []
certain spacing distances in light of the specific nuclear plant
design.
Ans. 6–7.
Indeed, as the Examiner points out, Niino specifically discloses that
“[r]eactor building 3a and turbine building 7a are spaced away from each
other due to the terrain, so that a main steam piping 2a disposed in a main
steam tunnel 11 a is large in length.” Niino, col. 6, ll. 55–60. Accordingly,
we agree with the Examiner that “it would have been obvious to one of
ordinary skill in the art to have modified NPG to have employed a large
spacing distance between the nuclear island and the turbine island to meet a
particular nuclear plant design.” Ans. 7. The reason to modify the reference
may often prompt a person of ordinary skill in the art to do what the inventor
has done, but for a different purpose or to solve a different problem. It is not
necessary that the prior art suggest the combination to achieve the same
advantage or result discovered by an applicant. See, e.g., In re Kahn, 441
F.3d 977, 987 (Fed. Cir. 2006). “The fact that the motivating benefit comes
at the expense of another benefit . . . should not nullify its use as a basis to
modify the disclosure of one reference with the teachings of another.
Instead, the benefits, both lost and gained, should be weighed against one
another.” Winner Int'l Royalty Corp. v. Wang, 202 F.3d at 1349 n.8 (Fed.
Cir. 2000). Moreover, we further find persuasive the Examiner’s reasoning
that “the skilled artisan would recognize that conventional remedies can be
used to reduce loss of heat in a steam line (e.g., readily available insulation;
Niino’s below ground level arrangement).” Ans. 7.
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Application 13/366,909
9
Therefore, in view of the above, we affirm the Examiner’s rejection of
independent claim 1. The Appellant relies on dependency on claim 1 for
patentability of claims 2–8, 10–12, and 14. Appeal Br. 13. Accordingly,
these dependent claims fall with claim 1. The Appellant also relies on the
same arguments in support of patentability of independent claims 15, 19, and
30, and dependency on either claim 15 or 19 in support of patentability of
claims 16–18, 20, and 22–27. Appeal Br. 13–15. Accordingly, these claims
also fall with claim 1.
CONCLUSION
The Examiner’s rejection of claims 1–8, 10–12, 14–20, 22–27, and 30
is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–8, 10–12,
14–20, 22–
27, 30
103(a) NPG, Cipiti, Niino 1–8, 10–12,
14–20, 22–
27, 30

TIME PERIOD FOR RESPONSE
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).
AFFIRMED