Jeffrie Keenan

Patent Trials and Appeals Board

Jun 22, 2020

2019005577 (P.T.A.B. Jun. 22, 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.
14/936,940 11/10/2015 Jeffrie Keenan KEE-001-US-CON 2761
84212 7590 06/22/2020
The Belles Group, P.C.
1800 John F. Kennedy Blvd.
Suite 1010
Philadelphia, PA 19103
EXAMINER
DAVIS, SHARON M
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
06/22/2020 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):
uspto@thebellesgroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFRIE KEENAN
Appeal 2019-005577
Application 14/936,940
Technology Center 3600
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 21–36 and 39. See Final Act. 1. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Jeffrie Joseph
Keenan. Appeal Br. 2.
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Application 14/936,940
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CLAIMED SUBJECT MATTER
The claims are directed to a system and method for reducing tritium
migration. Claim 21, reproduced below, is illustrative of the claimed subject
matter:
21. A system for reducing tritium migration comprising:
a spent nuclear fuel pool comprising a body of tritiated
water having an exposed surface;
a cover comprising a vapor impermeable membrane,
wherein the cover is movable between an open state in which the
cover does not obstruct access to the exposed surface of the body
of tritiated water and a closed state in which the cover covers the
exposed surface of the body of tritiated water; and
wherein the vapor impermeable membrane comprises a
first vapor impermeable layer having a first major surface
opposite a second major surface, a radiation shielding layer
having a first major surface opposite a second major surface, and
a thermal insulating layer; and
wherein the first major surface of the first vapor
impermeable layer and the first major surface of the radiation
shielding layer face the same direction, and the second major
surface of the first vapor impermeable layer faces the first major
surface of the radiation shield layer.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
McCluer US 3,622,432 Nov. 23, 1971
Kleimola US 3,865,688 Feb. 11, 1975
Radelet US 6,561,522 B1 May 13, 2003
Sonntag US 2008/0182093 A1 July 31, 2008

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REJECTIONS
Claim 39 is rejected under 35 U.S.C. § 112, first paragraph, as failing
to comply with the written description requirement. Final Act. 6.
Claim 36 is rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite. Final Act. 7.
As Appellant does not seek our review of the rejections under
35 U.S.C. § 112, these rejections are summarily sustained. In re Berger, 279
F.3d 975 (Fed. Cir. 2002) (Affirming the Board’s affirmance of an
uncontested rejection, holding that the appellant had waived the right to
contest the rejection by not presenting arguments on appeal to the Board);
Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“the applicant can
waive appeal of a ground of rejection”).
Claims 21, 26–302, 35, 36, and 39 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Kleimola and Gazelle. Final Act. 8.
Claims 22–24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kleimola, Gazelle, and Radelet. Final Act. 11.
Claims 25 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Kleimola, Gazelle, and McCluer. Final Act. 12.3
Claim 30 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Kleimola, McCluer, and Sonntag. Final Act. 12.
Claims 31–34 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kleimola, McCluer, Sonntag, and Radelet. Final Act. 13.

2 “The Examiner notes that claim 30 is alternatively rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Kleimola [] in view of
Gazelle [], as explained above with respect to claims 21 and 28 (paragraphs
16 and 19).” Final Act. 13.
3 This is apparent from the Examiner’s discussion despite the absence of a
rejection statement by the Examiner.
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OPINION
Kleimola and Gazelle
Independent claims 21 and 35 are argued as a group with respect to
the rejection based on Kleimola and Gazelle (Appeal Br. 8–12). Claim 12 is
representative under 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner found Kleimola to disclose the basic system of claim
21. Final Act. 8. Kleimola, however, says little about the details of the cover
(not illustrated) that Kleimola expressly suggests could be provided at the
spent fuel pools 313, 314. See Kleimola col. 15, ll. 18–30. The Examiner
turns to Gazelle as demonstrating that radiation barriers having layers
arranged as recited in claim 21 were well-known in the art and concludes
that it would have been obvious to employ in Kleimola a barrier like that of
Gazelle to provide radiation shielding. Final Act. 9 (citing Gazelle col. 1, ll.
5–39).
Appellant argues:
Gazelle is entirely concerned with finding ways to modify
existing buildings or create new buildings in such a way that
people can be sheltered in place and safe from nuclear radiation
in the event of a nuclear war. Unlike the features recited in claim
21, Gazelle does not provide any teaching relevant to the
covering of a spent nuclear fuel pool. A person skilled in the art
is unlikely to believe that people would attempt to find shelter
from nuclear warfare in a spent nuclear fuel pool.
Appeal Br. 10–11.
In the words of our reviewing court, “[t]his argument presumes
stupidity rather than skill.” In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985).
We think, indeed we hope, that one skilled in the art of protecting people
and property from the dangers of nuclear radiation would understand that,
absent some technical reasons otherwise, teachings relating to radiation
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barriers may be relevant both to creating a barrier around people or property
to be protected, and creating a containment barrier around the source of the
radiation—in this case Kleimola’s spent fuel pools. We cannot agree with
Appellant that one skilled in the nuclear arts would need to expect humans to
take shelter within a spent nuclear fuel pool to consider Gazelle’s nuclear
radiation barrier relevant. If anything, one skilled in the art would consider
Gazelle’s barrier irrelevant should one seek shelter in a spent nuclear fuel
pool. At that point, both the person and the source of the nuclear radiation
would be on the same side of the barrier. Appellant has offered no technical
reasons why one skilled in the art would see some particular impediment to
using a barrier like that of Gazelle to instead mitigate or contain the source
of the radiation, as opposed to the people and property that may be injured or
damaged from radiation exposure.
Appellant further argues there is no purpose to using fire or heat
resistant panels like those of Gazelle to cover Kleimola’s pools because the
water itself serves to protect against such hazards. Appeal Br. 11. This
attorney argument is not supported by any evidence of record and is
contradicted by the uncontroverted evidence provided by the Examiner in
response to this argument. Ans. 5 (citing Office Action Appendix: Anatomy
of a Nuclear Crisis: A Chronology of Fukushima).
Appellant next argues that one skilled in the art would not use a panel
intended to be “mounted” in a building as a cover that is intended to be
“removed.” Appeal Br. 11 (emphasis in original). Appellant does not
provide any technical explanation to support the notion that one skilled in
the nuclear engineering arts would regard teachings related to radiation
protection panels primarily designed for rooms in buildings to be,
nevertheless, inapplicable with respect to non-permanent closures. Again,
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we do not think Appellant is attributing the requisite level of skill to the
hypothetical person described in 35 U.S.C. § 103(a). Gazelle leaves the list
of mounting structure possibilities open-ended. Ans. 6. One skilled in the art
would understand that fallout shelters of the type described in Gazelle would
likely, perhaps necessarily, require some means of ingress and egress.
Although Gazelle does not provide an express discussion on the matter, it
would seem entirely contrary to Gazelle’s intent of providing a radiation
barrier if Gazelle’s panels could not be employed on, or be used as, movable
or non-permanent closures associated with such means for ingress or egress.
We are not apprised by Appellant of any technical impediments to such use;
nor are we apprised of any technical impediment to such similar use as a
movable, non-permanent spent nuclear fuel pool covering. Absolute
predictability that the substitution will be successful is not required, all that
is required is a reasonable expectation of success. See In re O’Farrell 853
F.2d 894, 903–04 (Fed. Cir. 1988).
Appellant next argues that Gazelle’s opaque cover would not have
been an obvious substitution because it would destroy the benefits associated
with having a transparent cover in Kleimola. Appeal Br. 12. The Examiner
correctly points out that Kleimola’s discussion of a transparent cover is very
brief, a single sentence, and Kleimola’s discussion of any benefits associated
with a transparent cover are essentially non-existent or, at best, leave much
to speculation. Ans. 7. The Examiner has the better position, and the one
supported by evidence. As the Examiner points out, at the time of filing
Appellant’s application, approximately forty years after the issue date of
Kleimola, much of the “inspection,” as the term is likely intended to be
understood in Kleimola, is conducted via sensors or monitors as opposed to
visually. Ans. 7 (citing Office Action Appendix: Spent Fuel Pools, Nuclear
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Regulatory Commission). In any case, our reviewing court has recognized
that a given course of action often has simultaneous advantages and
disadvantages, and this does not necessarily obviate any or all reasons to
combine teachings. See Winner Int'l Royalty Corp. v. Wang, 202 F.3d 1340,
1349 n. 8 (Fed. Cir. 2000) (“The fact that the motivating benefit comes at the
expense of another benefit, however, 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.”). As the Examiner also correctly points out, the primary purpose of
Kleimola’s cover is not inspection, but to “prevent the evaporation of
tritiated water” and modification with Gazelle’s teachings would not detract
from that purpose. Appellant has not apprised us of any evidence or
provided any technical reasoning to explain why one skilled in the art would
prefer transparency in a spent nuclear fuel cover over more robust heat and
radiation protection that is likely to be provided by incorporating the
teachings of Gazelle.
For the foregoing reasons, we sustain the Examiner’s rejection of
claims 21 and 35 based on Kleimola and Gazelle. It is noted that the
Examiner alternatively rejected claim 30 based on Kleimola and Gazelle
(Final Act. 13) in addition to rejecting claim 30 based on Kleimola,
McCluer, and Sonntag (Final Act. 12). It is not clear if Appellant did not
notice this rejection or intended to group claim 30 with the arguments
presented concerning the rejection of claims 21 and 35 based on Kleimola
and Gazelle. The Examiner does not mention the rejection of claim 30 based
on Kleimola and Gazelle in the Examiner’s Answer. 37 C.F.R. § 41.39(a)(1)
provides that:
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An examiner’s answer is deemed to incorporate all of the
grounds of rejection set forth in the Office action from which the
appeal is taken (as modified by any advisory action and
pre‑appeal brief conference decision), unless the examiner’s
answer expressly indicates that a ground of rejection has been
withdrawn.
37 C.F.R. § 41.39(a)(1) supersedes the rule of Ex parte Emm, 118 USPQ
180, 181 (Bd. App. 1957) that rejections not repeated in the Answer are
presumed to have been withdraw. Accordingly, we sustain the rejection of
claim 30 based on Kleimola and Gazelle because there is no indication that
this rejection has been withdrawn, nor has this rejection been argued. See In
re Berger, supra.

Kleimola, McCluer, and Sonntag
With regard to the rejection of claim 30 based on Kleimola, McCluer,
and Sonntag, Appellant argues:
A skilled person would not have combined the radiation
shielding layer L2 of Sonntag with the radiation shielding layer
(2) and thermal insulating layer (1) of McCluer, because the layer
of Sonntag is a liquid and the layer of McCluer is a fabric.
Appeal Br. 15.
Setting aside the fact that layer L2 of Sonntag is actually described as
an elastomeric matrix including a percentage of liquid or gelled particles
therein (Sonntag paras. 12–13), Appellant’s argument is inapposite as the
Examiner never proposed to incorporate Sonntag’s layer L2. Final Act. 13;
Ans. 4, 8. Arguments must address the Examiner’s action. 37 C.F.R.
§ 41.37(c)(1)(iv)(“The arguments shall explain why the examiner erred as to
each ground of rejection contested by appellant”).
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Appellant also argues that the first layer of McCluer does not meet the
“sandwiched between” limitation. Appeal Br. 16–17. There does not appear
to be any actual dispute as to the meaning of the term “sandwiched” as the
Examiner applied the interpretation of the term proffered by Appellant.
Appeal Br. 17; Ans. 4, 9. However, Appellant’s argument, again, does not
address the Examiner’s action which cites Sonntag and not McCluer
regarding the recited sandwiching aspect of claim 30. Final Act. 13; Ans. 4.
Appellant’s final argument concerning claim 30 is:
Sonntag fails to cure the deficiencies of McCluer because,
irrespective of what Sonntag teaches, one having ordinary skill
in the art would not ignore the requirement of McCluer that the
radiation shielding material and water-impervious polymeric
binder be formed into a single integral layer.
Appeal Br. 18 (emphasis omitted). Once again, we do not see how this has
any bearing on the Examiner’s action as the Examiner never proposes
separating McCluer’s radiation shielding material and water-impervious
polymeric binder. Final Act. 13; Ans. 4.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 30 based on Kleimola, McCluer, and Sonntag.

Kleimola, Gazelle, Radelet
Radelet undisputedly provides a closure seal that would satisfy the
requirements of claim 22. Appellant argues Radelet is nonanalogous art.
Appeal Br. 20–21.
The analogousness of Radelet is a factual question and we adopt as
our own the Examiner’s findings on the issue:
Radelet is reasonably pertinent to the particular problem with
which the application was concerned. Radelet is directed to (with
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emphasis added) “forming a seal between two surfaces, for
example in a protective housing to protect the contents of the
housing from contamination” (column 1, lines 3-6). The present
invention is directed to (with emphasis added) “reducing
environmental contamination” ([0002]) by “hermetically
seal[ing] the exposed surface of the body of tritiated water”
([0008]). Thus, both Radelet and the present invention are
concerned with providing a seal to mitigate contamination and
Radelet therefore qualifies as analogous art. Applicant’s
arguments conflate the field of endeavor of the present
invention–spent fuel pool–and that of Radelet–electronics
protection–with the “particular problem” the two structures are
solving. Both Radelet and the present invention solve the
particular problem of “contamination” with a “seal,” making
Radelet analogous
Ans. 9–10 (emphasis omitted); see, e.g., In re Paulsen, 30 F.3d 1475, 1478
n. 6 (Fed. Cir. 1994) accord In re Cree, Inc. 818 F.3d 694, 698 n. 2 (Fed.
Cir. Mar. 21, 2016). As the Supreme Court has observed “familiar items
may have obvious uses beyond their primary purposes.” KSR Int'l Co. v.
Teleflex, Inc., 550 U.S. 398, 420 (2007); see also, In re ICON Health and
Fitness, Inc., 496 F. 3d 1374, 1380 (Fed. Cir. 2007). Appellant does not
provide any evidence or technical reasoning to explain why closure seals in
radiation containment environments are so specific as to render irrelevant,
for the purposes of a § 103(a) inquiry, any teachings related to closure seals
in general or those having different intended uses.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 22 based on Kleimola, Gazelle, Radelet.

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Remaining Claims and Rejections
We presume Appellant intended to argue any remaining claims not
specifically mentioned based on dependency. Accordingly, these claims fall
with the respective claims from which they depend.
CONCLUSION
The Examiner’s rejections are AFFIRMED.
DECISION SUMMARY
Claim(s) 35 U.S.C. § Basis/Reference(s) Affirmed Reversed
39 112 first
paragraph
Written
Description
39
36 112, second
paragraph
Indefinite 36
21, 26–30,
35, 36, 39
103(a) Kleimola, Gazelle, 21, 26–30,
35, 36, 39

22–24 103(a) Kleimola, Gazelle,
Radelet,
22–24
25 Kleimola, Gazelle,
McCluer
25
30 103(a) Kleimola,
McCluer, Sonntag
30
31–34 103(a) Kleimola,
McCluer, Sonntag,
Radelet,
31–34
Overall
Outcome
21–36, 39
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