Bert ZAUDERER

Patent Trials and Appeals Board

Jun 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.
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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,
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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.
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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).
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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
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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,
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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
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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,
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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
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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.
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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).