Ex Parte Burfin et al

Patent Trial and Appeal Board

Dec 13, 2013

11791915 (P.T.A.B. Dec. 13, 2013)

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.
11/791,915 05/30/2007 Pascal Burfin 568.1001 6548
23280 7590 12/13/2013
Davidson, Davidson & Kappel, LLC
485 7th Avenue
14th Floor
New York, NY 10018
EXAMINER
O'CONNOR, MARSHALL P
ART UNIT PAPER NUMBER
3646
MAIL DATE DELIVERY MODE
12/13/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PASCAL BURFIN, MICHEL BONNAMOUR,
GILLES MARGIER, JÜRGEN STABEL-WEINHEIMER,
and MINGMIN REN
____________________

Appeal 2012-000639
Application 11/791,915
Technology Center 3600
____________________

Before: JENNIFER D. BAHR, JOHN C. KERINS, and
STEFAN STAICOVICI, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-000639
Application 11/791,915

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STATEMENT OF THE CASE
Pascal Burfin et al. (Appellants) appeal under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 14-28. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
The Claimed Subject Matter
Claim 14, reproduced below, is illustrative of the claimed subject
matter.
14. A grid for spacing nuclear fuel rods in a nuclear fuel
assembly, the grid defining a substantially regular array of cells
and comprising:
a peripheral belt having an upper edge and a lower edge,
the peripheral belt having guide fins extending inwardly on at
least one of the upper and lower edges, the peripheral belt in
plan view having a substantially square shape with four sides
and four comers, the at least one upper and lower edge of the
peripheral belt having setbacks formed in the at least one upper
and lower edge of the peripheral belt and extending inwardly
and positioned between adjacent guide fins of the same side of
the at least one upper and lower edge.

Evidence
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Burger
Bryan
Kang
US 4,426,355
US 5,307,392
US 6,421,407 B1
Jan. 17, 1984
Apr. 26, 1994
Jul. 16, 2002
Appeal 2012-000639
Application 11/791,915

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Rejections
The following rejections are before us for review:
I. Claims 14-17, 19, 21, 22, and 24-28 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Bryan and Kang;
and
II. Claims 18, 20, and 23 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Bryan, Kang, and Burger.

OPINION
Rejection I
In contesting this rejection, Appellants provide separate arguments for
claims 14, 21, and 28. App. Br. 5, 7. Pursuant to 37 C.F.R.
§ 41.37(c)(1)(vii) (2011), we decide the appeal as to claims 14-17, 19, 22,
and 24-27 on the basis of claim 14. We address claims 21 and 28 separately.

Claims 14-17, 19, 22, and 24-27
Claim 14 is directed to a grid for spacing nuclear fuel rods in a nuclear
fuel assembly comprising, in relevant part, a peripheral belt having guide
fins extending inwardly on at least one of upper and lower edges of the
peripheral belt, with inwardly-extending setbacks formed in the at least one
upper and lower edge of the peripheral belt and positioned between adjacent
guide fins of the same side of the at least one upper and lower edge.
The Examiner finds that Bryan teaches a peripheral belt having guide
fins extending inwardly on at least one of the upper and lower edges, “but
fails to teach that the at least one upper and lower edge of the peripheral belt
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have setbacks formed in the at least one upper and lower edge”; and that
Kang
teaches that at least one upper and lower edge of a peripheral
belt 115, 116 (figure 9) has setbacks 122 (convex portion)
formed in the edge of the peripheral belt 115, 116 and
extending inwardly and positioned between adjacent guide fins
122 (concave portion) of the same side of the at least one upper
and lower edge (figures 7 and 9; column 5, lines 7-10).
Ans. 4-5. The Examiner states,
A motivation for constructing the peripheral belt with
setbacks positioned between adjacent guide fins of the same
side of the at least one edge is to facilitate supporting a fuel rod
within the belt, reduce pressure drop, and improve mixing
effect of coolant within a fuel assembly (Kang et al.; column 5,
lines 22-23). Thus, it would have been obvious to one of
ordinary skill in the art to construct the peripheral belt as
described above.
Id. at 5.
Appellants argue that Kang discloses convex and concave vanes; that
Kang combines both the convex and concave vanes to “reduce the pressure
drop and to improve the mixing effect of coolant” (Kang, col. 5, ll. 22-24);
and that “[t]here is no reason or motivation for one of skill in the art to
provide only half of dipper vanes 122 and 123 and modify Bryan as such.”
App. Br. 6. Further, Appellants state that Kang teaches not just an inwardly
extending structure (as claimed), but rather both an inwardly and outwardly
extending structure. Id.
We determine that Bryan combined with Kang satisfies all of the
limitations set forth in claim 14. Claim 14 requires inwardly-extending
setbacks, but does not exclude a portion of the setbacks extending
outwardly. The Kang grid strips 115, 116 contain a dipper vane 122
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comprising a convex portion adjacent to a concave portion. The concave
portion extends inwardly when forming a grid 110 and supports a fuel rod 25
within a cell of the grid 110. Id., col. 5, ll. 7-9; fig. 9. The fact that this
concave portion of dipper vane 122 also extends outwardly at some point is
of no moment – it does extend inwardly. Further, Appellants’ argument
regarding providing “half” of a dipper vane is not germane to the
Examiner’s proposed combination, which includes both the fin portion
(which corresponds to the convex portion) and the setback (i.e., the concave
portion) in the peripheral belt of the grid.
In addition, Appellants contend that the combination of Bryan with
Kang is based on impermissible hindsight reconstruction because the
concave portion of dipper vane 122 in part extends outwardly. App. Br. 6.
We disagree. As emphasized above, claim 14 does not exclude a portion of
the setbacks extending outwardly. The rejection accounts for Kang’s
teaching that the convex portion supports the fuel rod 25 within the cell of
the grid 110, and hence is based on knowledge within the level of ordinary
skill at the time the claimed invention was made. As stated in In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971),
[a]ny judgment on obviousness is in a sense necessarily a
reconstruction based on hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant's
disclosure, such a reconstruction is proper.
The Examiner articulated a reason (i.e., to facilitate supporting a fuel rod
within the belt) with some rational underpinning to make the combination.
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (stating that the relevant
inquiry is whether the examiner has set forth “some articulated reasoning
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with some rational underpinning to support the legal conclusion of
obviousness”) (cited with approval in KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 418 (2007)).
We sustain the rejection of claim 14 and of claims 15-17, 19, 22, and
24-27, which fall with claim 14.

Claim 21
Claim 21 requires that the guide fins bear against regions of the inner
plates that constitute stiffeners. The Examiner’s position that “[t]he guide
fins 504/506 [of Bryan] at least indirectly bear against the inner plates 528”
(Ans. 13), is not well taken because it is premised on an unreasonably broad
construction of “bear against.” As Appellants point out, the guide fins 504
and 506 of Bryan are not in contact with any portion of the grid internal
strips. See App. Br. 7. Rather, it is the central region 502 of the perimeter
strip 500 that is in contact with the grid internal strips 108, shown as
phantom lines 528 in figure 11.
We do not sustain the rejection of claim 21.

Claim 28
Claim 28 depends from dependent claim 27, which requires that
peripheral cells which border a peripheral belt have a guide fin section
which extends over the peripheral cell and a further fin section of one of the
adjacent guide fins which also extends over the peripheral cell. App. Br. 14,
Clms. App’x. Claim 28 further requires that one of the setbacks is located
between the fin section and the further fin section. Id.
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Appellants argue that “neither Bryan nor Kang shows setbacks
‘located between the fin section and the further fin section.’” App. Br. 7.
This argument is predicated on Appellants’ misconception that the Examiner
relies on dipper vanes 122 as setbacks and on dipper vanes 123 as fins. Id.
However, as discussed above, the Examiner considers the convex portions of
dipper vanes 122 to be fins and the concave portions of the dipper vanes 122
to be setbacks. Thus, the setbacks in the proposed combination are located
between a fin section and a further fin section.
Appellants additionally argue that “[g]iven the Examiner’s
interpretation of the outwardly extending vanes being the asserted guide fins,
no fin section extends ‘over a peripheral cell’ with a setback therebetween
[sic].” Reply Br. 3. This argument is not convincing. Figure 11 of Bryan
depicts guide fins 504, 506 extending inwardly, and Bryan’s figure 3 depicts
in plan view guide fins and further guide fins extending over a peripheral
cell.
We sustain the rejection of claim 28.

Rejection II
In contesting this rejection, Appellants reiterate their arguments
asserted against the rejection of claim 14. App. Br. 8-9. These arguments
are not convincing for the reasons discussed above. Appellants present no
further arguments contesting the rejection of claim 18. Thus, we sustain the
rejection of claim 18.
Appellants additionally assert separate arguments for claims 20 and
23. App. Br. 9, 10. We thus address these claims separately.

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Claim 20
Claim 20 recites an inner plate with notches for mutually engaging
inner plates at cross points, with the notches “having respective regions of
reduced width.” App. Br. 13, Clms. App’x. The Examiner finds that
“Figure 2b, of B[u]rger, clearly shows a notch 76 with a reduced width
compared to the width of the inner plate 52.” Ans. 13. In support of this
finding, the Examiner asserts that claim 20 “does not make clear to which
element the notches are compared in terms of width.” Id. The Examiner’s
assertion effectively ignores the limitation that the notches have respective
portions of reduced width, which reasonably conveys that the notches have
portions of reduced width relative to other portions of the notches. See
Spec., paras. [0053]-[0054] (describing constrictions 57, corresponding to a
reduction in width of the notches 55); fig. 8. The written disclosure in
Burger is silent about “regions of reduced width,” and Burger’s figure 2b
does not show a plate with notches having regions of reduced width.
We do not sustain the rejection of claim 20.

Claim 23
Claim 23 requires lateral retaining abutments formed on the bottom
edges and the top edges of the inner plates adjacent to the peripheral belt.
App. Br. 13; Clms. App’x. In addressing this limitation, the Examiner finds
that “Burger teaches a grid 12 wherein the lateral retaining abutments 48 are
formed in the bottom edges and the top edges of the inner plates 44.” Ans.
10. This finding is not correct. The abutments (spring tabs 48) depicted in
Figure 2c of Burger are not on the bottom and top edges of inner plates
(strips 44).
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We do not sustain the rejection of claim 23.

DECISION
The Examiner’s decision rejecting claims 14-19, 22, and 24-28 under
35 U.S.C. § 103(a) is affirmed, and the decision rejecting claims 20, 21, and
23 under 35 U.S.C. § 103(a) is reversed.

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-IN-PART

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