12000644 (B.P.A.I. Jul. 11, 2011)

Ex Parte Cheung et al

Board of Patent Appeals and InterferencesJul 11, 2011

12000644 (B.P.A.I. Jul. 11, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte YEE KWONG CHEUNG and JOEL P. MELITO ____________ Appeal 2010-003449 Application 12/000,644 Technology Center 3600 ____________ Before LINDA E. HORNER, MICHAEL C. ASTORINO, and JAMES P. CALVE, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appeal 2010-003449 Application 12/000,644 2 STATEMENT OF THE CASE On September 13, 2011, Yee Kwong Cheung and Joel P. Melito (“Appellants”) filed a request for rehearing (“Request”) under 37 C.F.R. § 41.52 requesting we reconsider our decision of July 13, 2011 (“Decision”). Requests for Rehearing are limited to matters overlooked or misapprehended by the Panel in rendering the original decision. See 37 C.F.R. § 41.52. In the Decision, we affirmed the Examiner’s rejection of claims 1-15, 17, and 18 under 35 U.S.C. § 103(a) as unpatentable over Hidaka, Cheung, and Thompson, and we affirmed the Examiner’s rejection of claim 16 under § 103(a) as unpatentable over Hidaka, Cheung, Thompson, and Johnson. Appellants contend that in focusing on the broadest reasonable interpretation of the claims, the Board did not accord proper weight to what the teachings of the prior art references as a whole would have suggested to one of ordinary skill in the art. Request 4. Appellants also argue that the Board’s interpretation of “housing” in independent claims 1, 17, and 18 to encompass the housing 114 of Thompson appeared to equate the Examiner’s broad interpretation with the requisite motivation to modify the structure 118 of Cheung and did not consider the references as a whole. Request 6. While arguing that the Board has failed to consider the combined teachings of the references as a whole, Appellants largely offer a piecemeal analysis of the references rather than a review of their combined teachings as a whole in relation to the claimed subject matter. See Request 4-9. It is well-settled that “[n]on-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citation omitted). Appeal 2010-003449 Application 12/000,644 3 We are not persuaded by Appellants’ arguments that the Board or the Examiner misunderstood Appellants’ claimed subject matter or the prior art as a whole. The Examiner found Hidaka and Cheung disclose check valve systems that operatively connect a wetwell and a drywell in a reactor. See Ans. 6. The check valve or vacuum breaker is operatively connected to the drywell via pipes. To the extent Hidaka or Cheung do not disclose a housing “completely enclosing” the vacuum breaker in the drywell, the Examiner relied on Thompson to show such a vacuum breaker valve and housing. Ans. 7. Thompson discloses a vacuum breaker valve assembly that includes a valve body 114 and a breaker valve 116. Thompson, col. 3, ll. 9-10; see Ans. 7. Appellants’ Specification discloses the vacuum breaker may be a process-actuated valve. Spec. [0023]. The Examiner’s interpretation of the claimed housing and vacuum breaker valve to encompass the valve body 114 and breaker valve 116 of Thompson is reasonable and consistent with Appellants’ Specification. Appellants’ attorney argument is not evidence or sufficient to rebut the Examiner’s findings and determination.1 Appellants also devote much of the Request to attacking the physical incorporation of Thompson and Cheung. Request 5-10. It is well-settled that a combination of references may render claimed subject matter obvious even if the features of one reference cannot be substituted physically into the structure of the other references. E.g., In re Yamamoto, 740 F.2d 1569, 1573 (Fed. Cir. 1984) (“[W]e have said before that a claim may have been 1 Appellants repeatedly refer to the understanding of persons skilled in the art (Request 4, 7, 8, 9); however, Appellants have not cited to any record evidence to support their assertions. Appellants’ reference to an internet search of “process-actuated valve” (Request 9 n. 11) is not evidence of record in this appeal. See 37 C.F.R. §§ 41.37(c)(1)(ix) and 41.33(c)(2). Appeal 2010-003449 Application 12/000,644 4 obvious in view of a combination of references even if the features of one reference cannot be substituted physically into the structure of the other references.”); In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) (“What appellants overlook is that it is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.”). We note that Appellants’ housing does not completely enclose the vacuum breaker in the drywell, as called for in claim 1, because it does not enclose the part of the vacuum breaker that is positioned in the diaphragm floor. If the housing completely enclosed the vacuum breaker in the drywell, the vacuum breaker would not operatively connect the wetwell and the drywell. Independent claim 17 recites the housing encloses the vacuum breaker so the vacuum breaker is not exposed to the drywell. Claim 18 recites that the housing encloses the vacuum breaker without contacting the vacuum breaker. Giving claims 1, 17, and 18 their broadest reasonable interpretation consistent with the Specification, claims 1, 17, and 18 recite a housing that encloses a vacuum breaker in the drywell so fluid flow between the wetwell and the drywell passes through the vacuum breaker, discharge pipes, and a discharge pool. See Spec. [0024-0027]. As a result, the vacuum breaker valve is not exposed to the drywell except through the discharge pipes and discharge pool. Fluid flow from the wetwell to the drywell passes through the vacuum breaker to discharge pipes and a discharge pool. See Spec. [0024]. Fluid flow from the drywell to the wetwell must pass through the discharge pool and discharge pipes before reaching the vacuum breaker valve. See Spec. [0027]. Appeal 2010-003449 Application 12/000,644 5 Hidaka and Cheung disclose a check valve/vacuum breaker enclosed in a housing in the drywell so fluid flow from the wetwell to the drywell passes through the check valve/vacuum breaker to a discharge pipe and a water tank/fluid before reaching the drywell. Fluid flow from the drywell to the wetwell must pass through the water tank/fluid and pipe before reaching the check valve/vacuum breaker. This arrangement addresses the problem identified in Appellants’ Specification that a vacuum breaker may develop leaks over time due to repeated opening/closing operations allowing hot steam from the drywell to pass directly to the wetwell. See Spec. [0002]. Appellants’ solution to this problem was to house the vacuum breaker valve so gas flowing from the drywell to the wetwell passes through a discharge pool and discharge pipes to reach the vacuum breaker valve. As a result, if there is overpressure in the drywell relative to the wetwell, water in the discharge pool and discharge pipes may prevent gas in the drywell from flowing directly into the wetwell through a leaking vacuum breaker valve. Spec. [0003, 0027]. The Examiner’s determination that Hidaka, Cheung, and Thompson disclose a vacuum breaker operatively connecting a wetwell and drywell and enclosed in the drywell by a housing that includes discharge pipes that extend into a discharge pool, as called for in claims 1, 17, and 18, is supported by substantial evidence. DECISION Upon reconsideration, the rejection of claims 1-15, 17, and 18 under § 103(a) as unpatentable over Hidaka, Cheung, and Thompson remains affirmed and the rejection of claim 16 under § 103(a) as unpatentable over Hidaka, Cheung, Thompson, and Hidaka remains affirmed. Appeal 2010-003449 Application 12/000,644 6 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). RECONSIDERATION DENIED Klh