Ex Parte Blaudin De the

Board of Patent Appeals and Interferences

Jun 15, 2011

10583626 (B.P.A.I. Jun. 15, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte FRANCOIS BLAUDIN DE THE
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Appeal 2010-001308
Application 10/583,626
Technology Center 3600
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Before WILLIAM F. PATE, III, DANIEL S. SONG, and
EDWARD A. BROWN, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-001308
Application 10/583,626

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The Appellant appeals under 35 U.S.C. § 134(a) from a Final
Rejection of claims 6-13 (App. Br. 2). Claims 1-5 were cancelled (App. Br.
2). We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We
AFFIRM-IN-PART.
The invention is directed to a fuel rod for a water-cooled nuclear
reactor (Spec. p. 1, ll. 2-4)1. Independent claim 6 is representative of the
appealed claims and reads as follows (App. Br. 17, Claims Appx., emphasis
added):
6. A fuel rod for a nuclear reactor that is cooled by
water, comprising:
a cylindrical tubular cladding;
a column of nuclear fuel pellets that are stacked
one on top of another inside the tubular cladding in the
axial direction of the cladding;
a first plug for tight closure of a first axial end of
the cladding of the rod arranged at a lower portion of the
fuel rod when the rod is in an operating position inside
the nuclear reactor, the cladding of the rod having an axis
vertical; and
a second plug for tight closure of the second axial
end of the cladding, the column of fuel pellets resting on
an inner portion of the first plug, referred to as a lower
plug, via a first lower end, and being retained inside the
tubular cladding by a compression spring that is
interposed between a second upper axial end of the
column of fuel pellets and an end of an inner portion of
the second plug, referred to as the upper plug, wherein
the inner portion of the lower plug engaged inside the
tubular cladding successively comprises, in the axial
direction and in a direction from the first towards the
second end of the cladding, a first cylindrical portion that

1 All references herein to the Specification are to the Substitute Specification
filed on June 20, 2006.
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has a diameter that is substantially equal to the inner
diameter of the tubular cladding, a second cylindrical
portion that has a diameter that is smaller than the inner
diameter of the tubular cladding and a third cylindrical
portion that has a diameter that is smaller than the inner
diameter of the tubular cladding and that is greater than
the diameter of the second cylindrical portion so that
there remains, between a lateral outer surface of the third
cylindrical portion and an inner surface of the tubular
cladding, a radial clearance for passage of gas and a
substantially planar end surface on which the first end of
the column of fuel pellets rests, so that an annular space
for expansion of gas is formed between the outer surface
of the second portion of the inner portion of the lower
plug and the inner surface of the cladding, a volume of
the annular space being a function of expansion of gas in
the fuel rod during operation.

THE REJECTIONS
The following Examiner’s rejections are before us for review:
1. Claim 12 is rejected under 35 U.S.C. § 112, second paragraph,
as omitting essential steps.
2. The following claims are rejected under 35 U.S.C. § 103(a) as
being unpatentable over the noted references:2
A. Claims 6, 12 and 13 over Bresnick (US 3,804,710, issued
Apr. 16, 1974) in view of Appellant's Admission.
B. Claims 7 and 8 over Bresnick in view of Clapham (US
4,046,631, issued Sept. 6, 1997).

2 As claims 7-10 depend from claim 6, we understand rejections "B," "C"
and "D" below to be over Appellant's Admission in addition to the noted
references.
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C. Claim 9 over Bresnick in view of Ocken (US 4,120,752,
issued Oct. 17, 1978).
D. Claim 10 over Bresnick in view of Hayashi (US
4,111,748, issued Sept. 5, 1978).
E. Claim 11 over Bresnick in view of Ocken.

ISSUES
The following issues have been raised in the present appeal.
1. Whether the Examiner erred in finding that the method of
manufacturing a fuel rod recited in claim 12 fails to recite "essential steps."
2. Whether the Examiner erred in concluding that the combination
of Bresnick and Appellant's Admission renders obvious the fuel rod recited
in claim 6 with "a volume of the annular space being a function of expansion
of gas in the fuel rod during operation."
3. Whether the Examiner erred in concluding that the combination
of Bresnick, Appellant's Admission, and Clapham renders obvious a fuel rod
having the size of the radial clearance recited in claim 7.
4. Whether the Examiner erred in concluding that the combination
of Bresnick, Appellant's Admission, and Clapham renders obvious a fuel rod
having the numerical limitations in claim 8 for the respective diameter and
length of the second cylindrical portion relative to the inner diameter of the
tubular cladding.
5. Whether the Examiner erred in concluding that the combination
of Bresnick, Appellant's Admission, and Ocken renders obvious the fuel rod
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recited in claim 9 which comprises fuel pellets that comprise one of
plutonium oxide and a mixed oxide of uranium and plutonium.
6. Whether the Examiner erred in concluding that the combination
of Bresnick, Appellant's Admission, and Hayashi renders obvious the fuel
rod recited in claim 10 which comprises at least one cross-member as
recited.

ANALYSIS
Rejection of claim 12 under 35 U.S.C. § 112, second paragraph
Claim 12 recites "[a] method for manufacturing the fuel rod as recited
in claim 6 comprising: determining the volume of the second intermediate
portion as a function of the expansion of gases in the fuel rod during
operation" (App. Br. 19, Claims Appx.). The Appellant argues contrary to
the Examiner that claim 12 recites manufacturing the full and complete fuel
rod of claim 6, and does not omit essential elements (App. Br. 6-7; Ans. 3,
13.)
We agree with the Appellant. Claim 12 makes reference to the fuel
rod as recited in claim 6 and, accordingly, includes all of the limitations of
claim 6 for the fuel rod. These limitations for the fuel rod are given weight
in the method recited in claim 12. The test for definiteness of claim
language under 35 U.S.C. § 112, second paragraph, is whether "those skilled
in the art would understand what is claimed when the claim is read in light
of the specification." Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806
F.2d 1565, 1576 (Fed. Cir. 1986) (citations omitted). We find the language
of claim 12 to be clear in light of the specification, and hence in compliance
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with 35 U.S.C. § 112, second paragraph. Thus, we do not sustain the
Examiner's rejection of claim 12.

Rejection of claims 6, 12 and 13 as obvious over Bresnick in view of
Appellant's Admission
As to independent claim 6, the Examiner finds that Bresnick discloses
a fuel rod for a nuclear reactor comprising, inter alia, a "lower plug" 6 (i.e.,
bottom end plug) including a "first cylindrical portion" 13 (i.e., inner tapered
section), a "second cylindrical portion" 16 (i.e., neck portion), and a "third
cylindrical portion" 14 (i.e., head portion); a radial clearance for passage of
gas between a lateral outer surface of the head portion 14 and an inner
surface of the tubular cladding 1; and an annular space for expansion of gas
between the outer surface of the neck portion 16 and the inner surface of the
cladding 1 (Ans. 5; see Bresnick col. 2, ll. 11-12, ll. 16-31 & ll. 39-50;
FIGS. 1, 2). The Examiner finds that Bresnick does not disclose the
limitation that "a volume of the annular space being a function of expansion
of gas in the fuel rod during operation" (Ans. 5), but finds that "Appellant
admits that a conventional method of increasing the volume for expansion of
the gases in the fuel rod is to provide an upper and lower plenum in the fuel
rod (which is what Bresnick does (figure 1))" (Ans. 5; see Spec. p. 3, ll. 7-
17). The Examiner concludes that providing a fuel rod having the recited
volume limitation would have been obvious (Ans. 5).
The Appellant contends that Bresnick does not disclose or suggest the
expansion of gases within the fuel rod (App. Br. 9). The Appellant also
contends that the admission in the Specification is merely that it is
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conventional to put a shim on the bottom end plug in a fuel rod to increase
free space for expansion of gases during operation, and modifying the space
below the head portion 14 of Bresnick would be solely based on hindsight
(App. Br. 9).
The Appellant's arguments are not persuasive. Firstly, the Appellant
does not contest the Examiner's finding that Bresnick's fuel rod includes a
radial clearance between the lateral outer surface of the head portion 14 and
the inner surface of the tubular cladding 1 for passage of gas (Ans. 5; see
FIG. 1). We find that this radial clearance would allow gas passage from the
lower-most fuel pellet 2 into the annular space between the outer surface of
the neck portion 16 and the inner surface of the cladding 1. Although
Bresnick does not describe that gas expansion occurs in the annular space,
the presence of the annular space increases the volume in the fuel rod in
which such gas expansion occurs (i.e., in addition to fission gas receiving
chamber 3).
We determine that the recitation of "a volume of the annular space
being a function of expansion of gas in the fuel rod during operation" does
not specify any particular functional relationship between the volume of the
annular space and the expansion of gas in the fuel rod, or specify any
particular structure for the lower plug. We find no error in the Examiner's
finding that Bresnick's inner tapered section 13, neck portion 16, and head
portion 14 can be considered to function as a "shim" in the fuel rod, in that
this structure likewise defines an additional volume for gas expansion
between the collar 11 and lower-most pellet 2 (Ans. 14). We agree with the
Examiner that it would have been obvious to construct the annular space in
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Bresnick's fuel rod "to have a volume that is a function of the expansion gas
in the fuel rod" as claimed, in light of Appellant's admission that it is
conventional for fuel rods to have a lower plenum to provide increased
volume therein for gas expansion. Thus, we sustain the obviousness
rejection of claim 6.
Claim 12, discussed supra, and claim 13 depend from claim 6. The
Appellant relies on the same arguments made with respect to patentability of
claim 6 for patentability of claims 12 and 13 (App. Br. 9). Because we find
no deficiencies in the Examiner's rejection of claim 6, we also sustain the
obviousness rejection of claims 12 and 13.

Rejection of claims 7 and 8 as obvious over Bresnick in view of Appellant's
Admission and Clapham
As to claim 7, the Examiner finds that Bresnick fails to teach that the
radial clearance between the outer lateral surface of the head portion 14 and
the inner surface of the cladding 1 is between one and two tenths of a
millimeter. The Examiner relies on Clapham for teaching a radial clearance
between a "third cylindrical portion" 7 (i.e., flange) and a "tubular cladding"
1 (i.e., tube). The Examiner concludes that although neither Bresnick nor
Clapham discloses the specific value recited in claim 7, it would have been
obvious for one skilled in the art to find that the claimed value is an
appropriate/sufficient radial clearance in Bresnick (Ans. 7-8). Contrary to
the Examiner, the Appellant contends that one skilled in the art would not
have optimized the radial clearance in Bresnick to have the claimed value
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because there is no recognition that the clearance size is a result-effective
variable (App. Br. 15).
We find no error in the Examiner's conclusion of obviousness.
Firstly, as noted supra, the Appellant does not dispute the Examiner's
finding that Bresnick's fuel rod includes a radial clearance for gas passage
between the lateral outer surface of the head portion 14 and the inner surface
of the cladding 1. Clapham discloses that gas can traverse the gap 7a
between the flange 7 and tube 1 (col. 3, ll. 18-21). The Appellant does not
explain why one skilled in the art would not have recognized the size of the
radial clearance in Bresnick to be a result-effective variable (i.e., a variable
that achieves a recognized result). Moreover, Appellant's Specification
describes merely that a radial clearance size as claimed allows gas to pass
from the column of fuel pellets 3 at the periphery of the third portion 13
(Spec. p. 10, ll. 8-15). The Appellant does not direct us to any evidence that
shows the claimed radial clearance size is critical, or provides any
unexpected result. Hence, we agree with the Examiner that one skilled in
the art would be able to determine through routine experimentation an
optimum or workable radial clearance size in Bresnick. Thus, we sustain the
Examiner's obviousness rejection of claim 7.
As to claim 8, the Examiner finds that Bresnick fails to teach that the
neck portion 16 has a diameter of between 40% and 60% of the inner
diameter of the cladding, and a length in the axial direction of between 8 and
10 times the inner diameter of the cladding (Ans. 8). The Examiner relies on
Clapham for teaching that the "second cylindrical portion" 6 (i.e., stem) has
a diameter of about 18% of the inner diameter of the tube 1 (Ans. 8). The
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Examiner concludes that although neither Bresnick nor Clapham discloses
the specific values recited in claim 8, it would have been obvious to
optimize the diameter and length of the neck portion 16 relative to the inner
diameter of the cladding 1 in Bresnick to have the claimed values (Ans. 8).
The Appellant contends that one skilled in the art would not have optimized
these variables to have the claimed values because there is no recognition
that they are result-effective variables (App. Br. 11).
We agree with the Appellant that the Examiner has not shown that it
would have been obvious for one skilled in the art to optimize both the
diameter and the length of the neck portion relative to the inner diameter of
the cladding in Bresnick to have the claimed values. In this regard, Bresnick
describes that the head portion 14 of the plug 6 is spaced from the inner
tapered section 13 to keep the fuel pellets 2 a sufficient distance from the
weld 20 formed between the tube 1 and the periphery of the shoulder 12, so
as to prevent temperature gradients or fuel pellet swelling from producing
unacceptable high stresses that could rupture the weld or cladding near the
weld (col. 3, ll. 3-6 & 14-23; FIGS. 1 & 2). Bresnick describes that the head
portion 14 is spaced from the inner tapered section 13 by a predetermined
distance and supported by the neck portion 16 of reduced diameter (col. 2, ll.
49-51; FIGS. 1, 2). Hence, in Bresnick, the predetermined distance is
selected based on heat transfer considerations.
Claim 8 requires that the second cylindrical portion have a diameter of
between 40% and 60% of the inner diameter of the tubular cladding, and
also a length in the axial direction of between 8 and 10 times the inner
diameter of the tubular cladding. While optimizing both the diameter and
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the length of the neck portion 16 relative to the inner diameter of the
cladding 1 in Bresnick, in accordance with Bresnick's teachings, might result
in the fuel rod defined in claim 8, the Examiner has not shown that this
result would necessarily occur. Rather, the Examiner's position is based on
speculation as to what particular values these particular dimensions would
have upon being optimized to keep the fuel pellets 2 a safe distance from the
weld 20 to reduce the temperature gradient to an acceptable level. The
Examiner's application of Clapham does not provide an alternate rationale
for dimensioning these components to have, or result in, the recited
proportions. Hence, we do not sustain the obviousness rejection of claim 8.

Rejection of claim 9 as obvious over Bresnick in view of Appellant's
Admission and Ocken
Claim 9 recites that "at least a portion of the fuel pellets … comprises
one of plutonium oxide and a mixed oxide of uranium and plutonium" (App.
Br. 18, Claims Appx.). The Examiner finds that Bresnick fails to teach that
the fuel pellets 2 meet this limitation. The Examiner relies on Ocken for
disclosure of mixed oxide fuel pellets of uranium and plutonium, and
concludes that it would have been obvious to use these mixed oxide fuel
pellets as the fuel source in Bresnick to provide the necessary heat energy
(Ans. 9). The Appellant contends that one skilled in the art would know that
Bresnick's fuel rod is not suitable for use with MOX fuel because it is not
designed to have expansion space or gas capabilities for use with MOX
pellets (App. Br. 12-13).
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We find the Appellant's arguments unpersuasive. Firstly, we find the
Examiner has articulated a rational reason for combining Bresnick,
Appellant's Admission, and Ocken together; that is, to provide the necessary
heat energy in Bresnick's fuel rod. KSR Int'l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007). On the other hand, the Appellant has not set forth
persuasive evidence establishing that Bresnick's fuel rod would be
unsuitable for use with the claimed fuel pellets. In this regard, claim 9 does
not recite any structural limitations for the lower plug that are not found in
Bresnick's plug 6. Moreover, the Appellant admits that it is conventional to
use shims in MOX fuel rods to increase gas expansion space (see Spec. p. 3,
ll. 7-17), and we find no error in the Examiner's finding that Bresnick's fuel
rod also includes structure that functions as a "shim." Claim 9 requires only
that a portion of the fuel pellets have the recited composition. The Appellant
has not shown evidence that Bresnick's fuel rod would be unsuitable for use
if it contained any amount of the claimed fuel pellets. Hence, we sustain the
obviousness rejection of claim 9.

Rejection of claim 10 as obvious over Bresnick in view of Appellant's
Admission and Hayashi
The Examiner finds that Bresnick fails to disclose at least one cross-
member as claimed in at least one zone of the "second cylindrical portion."
The Examiner relies on Hayashi for disclosure of an end plug 5 / supporting
structure 3e combination that has a "cross-member" 6e (i.e., cylindrical
body) in the zone of the "second cylindrical portion" 13 (i.e., grooves) (Ans.
10; Hayashi col. 4, ll. 16-19; FIGS. 1, 7b). The Examiner concludes that it
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would have been obvious to design the end plug of Bresnick "to allow the
production of a series of successive breaks to thereby allow retention of
relatively uniform distribution of stress in the cladding tube or at the plugged
end junctures" (Ans. 10).
The Appellant contends that Hayashi does not disclose or teach the
claimed cross-member (App. Br. 13-14). However, the Appellant's
conclusory assertion does not explain how the claim language distinguishes
over Hayashi's cylindrical body 6e, and thus does not identify a basis for
concluding that the Examiner's findings are erroneous. Hence, we sustain
the obviousness rejection of claim 10.

Rejection of claim 11 as obvious over Bresnick in view of Ocken
Independent claim 11 is similar to claim 6, with claim 11 reciting that
"at least a portion of the fuel pellets of the column of fuel pellets comprises
one of plutonium oxide and a mixed oxide of uranium and plutonium" (App.
Br. 18, Claims Appx.). The Examiner's rationale is substantially the same as
for the rejection of claim 9, discussed supra (Ans. 11-12). The Appellant
relies on the same arguments made with respect to patentability of claim 9
for patentability of claim 11 (App. Br. 15). Because we find no deficiencies
in the Examiner's rejection of claim 9, we also sustain the obviousness
rejection of claims 11.

CONCLUSIONS
1. The Examiner erred in finding that the method of
manufacturing a fuel rod recited in claim 12 fails to recite "essential steps."
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2. The Examiner did not err in concluding that the combination of
Bresnick and Appellant's Admission renders obvious the fuel rod recited in
claim 6 with "a volume of the annular space being a function of expansion
gas in the fuel rod during operation."
3. The Examiner did not err in concluding that the combination of
Bresnick, Appellant's Admission, and Clapham renders obvious a fuel rod
having the size of the radial clearance recited in claim 7.
4. The Examiner erred in concluding that the combination of
Bresnick, Appellant's Admission, and Clapham renders obvious a fuel rod
having the numerical limitations in claim 8 for the respective diameter and
length of the second cylindrical portion relative to the inner diameter of the
tubular cladding.
5. The Examiner did not err in concluding that the combination of
Bresnick, Appellant's Admission, and Ocken renders obvious the fuel rod
recited in claim 9 which comprises fuel pellets that comprise one of
plutonium oxide and a mixed oxide of uranium and plutonium.
6. The Examiner did not err in concluding that the combination of
Bresnick, Appellant's Admission, and Hayashi renders obvious the fuel rod
recited in claim 10 which comprises at least one cross-member as recited.

DECISION
1. The Examiner's rejection of claim 12 under 35 U.S.C. § 112,
second paragraph, is REVERSED.
2. The Examiner's rejection of claims 6, 12 and 13 as unpatentable
over Bresnick in view of Appellant's Admission is AFFIRMED.
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3. A. The Examiner's rejection of claim 7 as unpatentable over
the combination of Bresnick, Appellant's Admission, and Clapham is
AFFIRMED.
B. The Examiner's rejection of claim 8 as unpatentable over the
combination of Bresnick, Appellant's Admission, and Clapham is
REVERSED.
4. The Examiner's rejection of claim 9 as unpatentable over the
combination of Bresnick, Appellant's Admission, and Ocken is AFFIRMED.
5. The Examiner's rejection of claim 10 as unpatentable over the
combination of Bresnick, Appellant's Admission, and Hayashi is
AFFIRMED.
6. The Examiner's rejection of claim 11 as unpatentable over
Bresnick in view of Ocken 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).

AFFIRMED-IN-PART

JRG