Ex Parte Cheng

Patent Trial and Appeal Board

Jul 17, 2013

11045167 (P.T.A.B. Jul. 17, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/045,167 01/27/2005 Alexander Y.C. Cheng 12093/10019 4849
26646 7590 07/17/2013
KENYON & KENYON LLP
ONE BROADWAY
NEW YORK, NY 10004
EXAMINER
MONDT, JOHANNES P
ART UNIT PAPER NUMBER
2894
MAIL DATE DELIVERY MODE
07/17/2013 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 ALEXANDER Y.C. CHENG
____________________

Appeal 2011-007361
Application 11/045,167
Technology Center 3600
____________________

Before CHARLES N. GREENHUT, PATRICK R. SCANLON, and
BART A. GERSTENBLITH, Administrative Patent Judges.

SCANLON, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/045,167

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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
decision rejecting claims 3-13. Claims 1 and 2 stand withdrawn from
consideration. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
Appellant’s claimed invention relates to “measuring neutron flux
values in reactor cores of nuclear power plants.” Spec. 1, ll. 2-3. Claim 3,
reproduced below, is the sole independent claim and illustrative of the
claimed subject matter.
3. A method of measuring a neutron flux,
comprising:
providing a nuclear fuel assembly, having a
length, a top end, and a bottom end, the nuclear
fuel assembly having at least two spacers, wherein
the at least two spacers separate the nuclear fuel
assembly into at least a topmost and a bottommost
part, the topmost part comprising the top end of the
fuel assembly, and the bottommost part comprising
the bottom end of the fuel assembly, the spacers
providing non-uniform spacing along the length of
the nuclear fuel assembly at least at the topmost
part and the bottommost part of the fuel assembly,
wherein the spacer spacing of the topmost part and
the bottommost part of the fuel assembly is
different from the spacer spacing along the rest of
the length of the nuclear fuel assembly;
providing at least three detectors in the
nuclear fuel assembly, at least a first of the three
detectors is positioned at the topmost part of the
nuclear fuel assembly, and at least a second of the
three detectors is positioned at the bottommost part
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of the nuclear fuel assembly, wherein the detectors
positioned at the topmost part and the bottommost
part of the nuclear fuel assembly have different
lengths than the third detector, the detectors
positioned in the nuclear fuel assembly in spaces
not occupied by nuclear fuel rod spacers, such that
the first and second detectors are exposed to
neutron flux at the top and bottom ends of the
nuclear fuel assembly, respectively, away from the
spacers;
exposing the nuclear fuel assembly to a
neutron flux field in a nuclear reactor; and
measuring the neutron flux field along the
entire fuel assembly length with the at least three
detectors in the nuclear reactor.
PRIOR ART
The Examiner relies upon the following prior art references:
Impink US 5,251,242 Oct. 5, 1993
Miura JP 56014971 A Feb. 13, 1981
M.L. Kantrowitz, An Improved Dynamic Compensation Algorithm
for Rhodium Self-Powered Neutron Detectors, IEEE Transactions on
Nuclear Science, Vol. NS-34, No. 1, pp. 562-566 (Feb. 1987)
(“Kantrowitz”).
The Examiner also relies upon Applicant’s Admission of Prior Art
(“AAPA”). See Ans. 4 (citing Spec. 1-4; fig. 1).
REJECTIONS
The following rejections are before us on appeal:
Claims 3, 5, and 6 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Impink and AAPA.
Claims 4, 8, 10, and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Impink, AAPA, and Kantrowitz.
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Claims 7, 9, 11, and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Impink, AAPA, Kantrowitz, and Miura.
ANALYSIS
Rejection of claims 3, 5, and 6 based on Impink and AAPA
The Examiner finds that Impink discloses a method of measuring
neutron flux including, inter alia, the step of providing at least three
platinum detectors 30-40 that extend “end-to-end within a reactor assembly”
and “over the height of the core.” Ans. 4 (citing Impink, Abst.; col. 1, ll. 5-
23). Based on this disclosure, the Examiner reasons that Impink’s detector
30 is positioned at a topmost part of the nuclear fuel assembly and Impink’s
detector 40 is positioned at a bottommost part of the nuclear fuel assembly.
Id.
The Examiner further finds that AAPA discloses providing individual
detectors between spacers in a fuel assembly and concludes that it would
have been obvious to provide Impink with spacers as taught by AAPA. Id.
at 5. The Examiner also determines that AAPA discloses non-uniform
spacing of the spacers such that the top and bottom areas are shorter than the
other areas between spacers. Id. Because of the shorter top and bottom
areas, the Examiner concludes it would have been obvious for the detectors
located in the top and bottom areas to be shorter than the other detectors, and
as such, the combination of Impink and AAPA would meet the limitation of
these detector having different lengths than a third detector. Id. at 5-6.
Appellant argues that one of ordinary skill in the art would not
understand Impink’s description of the detectors 30-40 being “axially
distributed end to end” as meaning the detectors are distributed over the full
length of the fuel assembly. App. Br. 7. Rather, Appellant asserts that “end
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to end,” as used in Impink, means the detectors 30-40 are arranged “such
that at least one end of each platinum detector is adjacent to an end of a
second platinum detector, and the detectors are all arranged in line, i.e.,
lengthwise.” Id.; see also Reply Br 4 (“Nowhere does Impink disclose that
end to end refers to extending from one end to the other of a fuel
assembly.”). Appellant also argues that Impink’s description of a detector
that could extend the height of the core necessarily means the total length of
the segmented platinum detectors 30-40 is less than the height of the core.1
App. Br. 7-8. Specifically, Appellant argues that because Impink discloses
that a single vanadium detector extends “at least over the full length of the
stack of platinum segments and could extend the height of the core,” the
vanadium detector “is longer than the overall length of the stack of platinum
detectors, which, thus, must be less than the height of core.” Id. at 8; Reply
Br. 9.
We agree with Appellant that in the context of how the phrase is used
in Impink, “end to end” means that the detectors 30-40 are arranged linearly
but not necessarily over the full length of the fuel assembly. However, we
disagree with Appellant’s contention that the total length of the segmented
platinum detectors must be less than the height of the core. Impink discloses
that a vanadium detector extends “at least over the full length of the stack of
platinum segments and could extend the height of the core.” Impink, col. 1,
ll. 19-21 (emphasis added). This language does not require the vanadium

1 The Examiner’s rejection appears to be based on the position that an object
extending the height of the core will also extend the full length of the fuel
assembly. Appellant does not contest this position and notes that the
Examiner is correct in stating “the axial extent of the core encompass[es] the
axial extent of the nuclear fuel assembly.” Reply Br. 6.
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detector to be either at least as long as the stack of platinum segments or to
extend the height of the core. Rather, the vanadium detector can have both
of these attributes. The cited passage describes the vanadium detector length
as being equal to or greater than the full length of the stack of platinum
segments; there is no indication that the vanadium detector must be longer
than the overall length of the segmented platinum detectors. Thus,
Appellant’s basis for asserting the stack of platinum segments must be less
in length than the height of the core is flawed, and the assertion does not
apprise us of error in the Examiner’s rejection.
We also are not persuaded by Appellant’s statement that “there is
nothing in the disclosure of Impink that one of ordinary skill in the art would
understand as disclosing that the stack of platinum detectors extends over the
height of the core.” Reply Br. 9. As noted above, Impink expressly
discloses that the vanadium detector can extend over the full height of the
core and does not indicate that the stack of platinum detectors cannot extend
over the full height of the core. Furthermore, Figure 7 of Impink shows the
stack of platinum detectors 30-40 to be co-extensive with the vanadium
detector 82. We thus agree with the Examiner that Impink would suggest to
one of ordinary skill in the art that the stack of platinum detectors 30-40
could extend over the full height of the core.
Appellant also argues that Impink does not disclose that the detector
30 is positioned at a topmost part of the fuel assembly or that the detector 40
is positioned at a bottommost part, and Impink discloses that the detectors
30-40 are all of the same length. App. Br. 9. These arguments are not
persuasive because they address Impink individually and fail to address the
Examiner’s proposed combination of Impink and AAPA. One cannot show
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non-obviousness by attacking references individually where the rejection is
based on a combination of references. See In re Keller, 642 F.2d 413, 426
(CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see
also In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991) (holding that
obviousness must be determined in light of the combined teachings of the
references). Here, the Examiner does not contend that Impink alone
discloses the features pointed out by Appellant, but relies on the combined
teachings of Impink and AAPA to conclude that it would have been obvious
to one of ordinary skill in the art to position shorter detectors in the topmost
and bottommost parts of the fuel assembly. Ans. 5-6.
Appellant’s arguments that AAPA teaches detectors of equal length
and does not disclose placing detectors in the topmost and bottommost
spaces of a fuel assembly (App. Br. 10-11) also are not persuasive because
they address AAPA individually and fail to address the Examiner’s proposed
combination. Moreover, Appellant concedes that the reason the AAPA
system lacks detectors in the topmost and bottommost spaces of the fuel
assembly is the non-uniform size of these spaces. Spec. 2, l. 32-3, l. 3; see
also App. Br. 10 (“the nuclear flux conditions at the top or bottom of the
nuclear fuel assembly are not monitored because detectors are not placed in
those positions because of space requirements”). In light of this, one of
ordinary skill would easily recognize that adjusting the size of the detectors
to fit non-uniform spaces would be a common sense solution. See KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (an obviousness analysis
“need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ”).
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Appellant further argues that the Examiner’s rejection is based on
improper hindsight, asserting without support that “[i]t is well settled law
that an invention is not obvious over the prior art if the problem solved by
the invention is not recognized in the prior art.” Reply Br. 10. However,
“[o]ne of ordinary skill in the art need not see the identical problem
addressed in a prior art reference to be motivated to apply its teachings.”
Cross Med. Products, Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d
1293, 1323 (Fed. Cir. 2005). Moreover, this is not a case in which “a
patentable invention may lie in the discovery of the source of a problem.” In
re Sponnoble, 405 F.2d 578, 585 (CCPA 1969).
Appellant states that the problem solved by the claimed invention is
“the measurement of neutron flux in areas of the fuel assembly and core that
are not measured in prior art fuel assemblies with prior art detectors.” Reply
Br. 10. Unlike the facts in Sponnoble, however, there is no showing that
Appellant has discovered the source of this problem. Rather, Appellant’s
Specification states that
[n]one of [the prior art] detector assembly designs
provide detection capability in areas that are more remote
in the nuclear fuel assembly, namely a top or bottom part
of the assembly where the spacing between individual
spacers is of a non-uniform configuration. These
detector systems assume that the nuclear flux conditions
at the top or bottom of the nuclear fuel assembly are
within expected parameters because these positions are
not monitored.
Spec. 2, l. 32-3, l. 5 (emphases added). Appellant’s Specification further
states
[i]n [the AAPA] systems 10, due to the limitations of
accurate monitoring, detectors are deleted from the edge
areas 16, 18 near the top and bottom of the fuel assembly
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20. Moreover, any activity in this area of the fuel
assembly 20 is assumed to be within operational
parameters if gamma radiation signatures are within
certain defined limits. The limitation of this design 10 is
that accurate measurements of core conditions are not
achieved because assumptions are made for these top 18
and bottom 16 areas.
Id. at 7, ll. 25-32 (emphases added). Thus, the prior art recognized both the
problem of measuring nuclear flux conditions in the outermost areas of the
fuel assembly and the source of the problem (i.e., the non-uniform
configuration of the outermost areas) and addressed the problem by making
assumptions for the nuclear flux conditions for the outermost areas.2
Therefore, Appellant cannot have discovered the source of the problem
because it was already known in the prior art.
In view of the above, we sustain the rejection of claims 3, 5, and 6
under 35 U.S.C. § 103(a) as being unpatentable over Impink and AAPA.
Rejections of claims 4 and 7-13
Appellant advances no additional arguments in connection with
claims 4, 8, 10, and 12, instead noting these claims include all of the
recitations of claim 3 and arguing that Kantrowitz fails to cure the
deficiencies in the combination of Impink and AAPA. App. Br. 11-13. As
we find no deficiency in the Examiner’s rejection of claim 3 as being

2 Although Appellant’s Specification discloses that measuring neutron flux
was known in the prior art (Spec., 3, l. 31-4, l. 10), the AAPA system 10 is
described as measuring only gamma radiation (Spec., 7, ll. 23-25).
Nevertheless, because measuring gamma radiation and neutron flux together
was known in the art (see, e.g., Impink, col. 1, ll. 9-12), one of ordinary skill
in the art would understand that the problem of measuring flux conditions in
the outermost areas of the fuel assembly, and the source of the problem,
would apply to measuring both gamma radiation and neutron flux.
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obvious over the combination of Impink and AAPA for the reasons
discussed supra, we sustain the rejection of dependent claims 4, 8, 10, and
12 for the same reasons.
Similarly, Appellant advances no additional arguments regarding
claims 7, 9, 11, and 13 and relies only on the assertion that Miura fails to
cure the deficiencies in the combination of Impink, AAPA, and Kantrowitz.
App. Br. 13-14. Again, because we find no deficiency in the Examiner’s
rejection of claim 3 as being obvious over the combination of Impink and
AAPA for the reasons discussed supra, we sustain the rejection of dependent
claims 7, 9, 11, and 13.
DECISION
We affirm the decision of the Examiner rejecting claims 3-13.
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

rvb