Ex Parte DeethDownload PDFPatent Trial and Appeal BoardMay 10, 201812803901 (P.T.A.B. May. 10, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 12/803,901 7590 Michael A. Deeth FILING DATE 07/09/2010 05/10/2018 29520 SCHOLL RD. WASHBURN, WI 54891 FIRST NAMED INVENTOR Mike Deeth 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 3041 EXAMINER BURKE, SEAN P ART UNIT PAPER NUMBER 3646 MAILDATE DELIVERY MODE 05/10/2018 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 MIKE DEETH Appeal2017-004818 Application 12/803,901 1 Technology Center 3600 Before LINDA E. HORNER, BRETT C. MARTIN, and ERIC C. JESCHKE, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Mike Deeth ("Appellant") seeks our review under 35 U.S.C. § 134(a) of the Examiner's decision rejecting claims 5 and 6, which are the only pending claims. Final Office Action (May 10, 2016) (hereinafter "Final Act."). We have jurisdiction under 35 U.S.C. § 6(b). The claimed subject matter relates to a nuclear fusion power plant. Substitute Specification i-f 1 (January 17, 2012) (hereinafter "Spec."). In 1 Appellant is the real party in interest and filed this appeal pro se. Appeal Brief 3 (October 11, 2016) (hereinafter "Appeal Br."). Appeal2017-004818 Application 12/803,901 particular, the claimed subject matter relates to bubble-confined sonoluminescent-laser fusion, or BSF. Spec. i-f 60. The Specification describes BSF with reference to a chart depicted in Figure 3. According to Figure 3, BSF "is an untested approach to thermonuclear fusion, characterized by a novel laser-ignition system and unorthodox containment." Id. Fig. 3. As described in the Specification, BSF begins with a gas bubble of deuterium-tritium (D-T) fuel that is placed in liquid suspension inside of a hollow reflecting sphere. Id. (step 1). Acoustic waves are launched at the fuel, and laser diodes activate to make the liquid laser-active. Id. (step 2). The acoustic waves cause compression, the bubble's temperature increases, and the fuel becomes hotter. Id. (step 3). The fuel's intense heat causes it to radiate brightly, and photons emitted from the fuel pass through the liquid suspension and become amplified. Id. (step 4). According to the Specification, Rayleigh-Taylor instabilities are prevented during acoustic pre-compression because the coolant, which pushes the gas, is of higher density than the gas. Id. (step 5). Also, the point at which implosion stagnates is never reached because rising temperatures trigger an outgoing laser cascade, which powerfully returns before the sound waves can converge by another fraction of a millimeter. Id. Internal reflections consume the sphere's inverted population and deposit the laser energy in the fuel. Id. (step 6). The target zone is ionized, causing the coolant to expand, thereby compressing the fuel until particle density and kinetic pressure equalize. Id. (step 7). A small amount of fuel becomes hot enough to fuse, and the fuel's dispersal and cooling are prevented by inbound flows, so it has time to self-heat, raising the temperature millions of degrees in less than a microsecond, and in the process, burning most of the 2 Appeal2017-004818 Application 12/803,901 fuel. Id. (step 8). Energy from the blast is converted into electricity, heat- exchangers remove the neutron heat, and piezoelectric transducers absorb the shockwave's kinetic energy. Id. The Examiner rejected the claims for failure to comply with the written description requirement and for obviousness in view of combined teachings of the prior art. For the reasons explained below, we agree with the Examiner's determination that the claimed subject matter lacks adequate written description in the Specification. We disagree, however, with the Examiner's determination of unpatentability based on obviousness. Because we sustain at least one ground of rejection of each of the pending claims, we AFFIRM. CLAIMED SUBJECT MATTER Claims 5 and 6 are reproduced below. 5. A method for combusting a bubble of thermonuclear fuel immersed within a substantially spherical, optically-reflective cavity filled with a transparent, laser-active fluid, comprising: (a) means for positioning said fuel inside said cavity, whereby said fuel's location and movement can both be sensed and controlled, so that said fuel can be forced to occupy the optical focus region at the center of said cavity; (b) means for increasing the pressure within said fluid, whereby said bubble can be compressed and quasi-adiabatically heated until it becomes incandescent; and ( c) means for optically pumping said fluid, whereby photons, of certain (lasing) frequencies emitted from the incandescent fuel, will be amplified, reflect, and return to said fuel. 6. The method of claim 5, further comprising: means for extracting energy, whereby said energy can be used to feed/drive a commercial-scale fusion power plant. 3 Appeal2017-004818 Application 12/803,901 Appeal Br. 19 (Claims Appendix). REJECTIONS The Final Office Action includes the following rejections: 1. Claims 5 and 6 stand rejected under pre-AIA 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. 2. Claims 5 and 6 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Bellak (US 3,967,215, issued June 29, 1976), Sorensen et al. (US 4,904,441, issued February 27, 1990) ("Sorensen"), and Dawson (US 5,974,059, issued October 26, 1999). ISSUES As to written description, the Examiner rejected the claims "because there was no evidence that the Appellant had demonstrated actual or constructive possession of the device." Ans. 7; see also Final Act. 7. The Examiner explained that claims 5 and 6 "are so broad that they encompass many more embodiments than that which is described in the specification." Ans. 2. The Examiner points to the following problems with the claimed method: (1) "there is absolutely no proof that BSF targets have ever existed, nor has the 'BSF reaction' ever been performed in a laboratory or occurred in nature;" (2) "[t]here is simply no evidence that the BSF reaction ha[s] ever occurred, much less any research has been performed on the stability modes of the BSF reaction;" and (3) "there is no evidence that [BSF] targets even exist, much less that they have favorable stability outcomes." Ans. 9. According to the Examiner, "[t]he written description requirement is not met because it is predicated on science which has never been 4 Appeal2017-004818 Application 12/803,901 performed." Id. The Examiner acknowledges that one need not actually practice an invention to satisfy the written description requirement; however, the Examiner states that "the present invention is predicated on an untested experimental concept in the field of nuclear fusion, which has had an overwhelming history of failure." Ans. 10; see also id. at 5. The Examiner further explains that "no evidence demonstrates the existence or partial existence of a machine necessary for the practice of the invention." Final Act. 6 (citing Manual of Patent Examining Procedure§ 2163.02). Based on these facts, the Examiner determined that "[a]bsent some tangible evidence that any of the science has been developed, one of ordinary skill in the art would be forced to engage in undue experimentation to achieve the claimed results." Ans. 10 (emphasis added); see also Final Act. 5 ("Applicant is not entitled to patent future benefits"). Appellant argues that the Examiner erred in requiring the existence of a machine to satisfy the written description requirement for the claimed method. Appeal Br. 14-15 (citing In re Ghiron, 442 F.2d 985, 991 (CCPA 1971) and Expanded Metal Co. v. Bradford, 214 U.S. 366 (1909)). Appellant insists that his invention was constructively reduced to practice at the time of filing his patent application. Reply Brief 28 (January 23, 2017) (hereinafter "Reply Br."). As to obviousness, the Examiner found that Bellak discloses a method for combusting a bubble of thermonuclear fuel immersed within a substantially spherical, optically-reflective cavity filled with a transparent, laser-active fluid comprising means for increasing the pressure within the fluid to compress and adiabatically heat the bubble until it becomes incandescent. Final Act. 10. The Examiner found that Bellak does not disclose means for positioning the fuel or pumping using a laser. Id. The 5 Appeal2017-004818 Application 12/803,901 Examiner found that Sorensen teaches means for positioning a fuel pellet (pellet gun) and detecting pellet velocity. Id. (citing Abstract, col. 8, 11. 25- 46). The Examiner determined that it would have been obvious to combine the chamber of Bellak with the positioning tool of Sorensen to increase ignition efficiency. Id. at 10-11. The Examiner found that Dawson teaches using a pumped laser diode system for driving a nuclear fusion reaction, and determined that it would have been obvious to have used Dawson's pumped laser in Bellak to provide an energy efficient method for achieving this level of energy. 2 Id. at 11. With regard to the Examiner's reliance on Sorensen, Appellant argues that the Examiner overlooked the limitation in claim 5 requiring that "said fuel" be a gaseous bubble and "said cavity" be "filled with ... fluid." Appeal Br. 15. Appellant asserts that Sorensen's disclosure of a gun that shoots frozen pellets is "neither equivalent nor operative, and it does not disclose how to position fuel at the center of a cavity filled with liquid." Id. The issues before us in the present appeal are: Whether Appellant's Specification reasonably conveys to those skilled in the art that Appellant had possession of the claimed subject matter as of the filing date. Whether Sorensen discloses "means for positioning said fuel inside said cavity" as recited in claim 5. 2 Appellant points out that he provided Jacob (US 5,022,043, issued June 4, 1991) in support of "means for optically pumping said fluid." Appeal Br. 15. 6 Appeal2017-004818 Application 12/803,901 Claim Interpretation LEGAL PRINCIPLES 35 U.S.C. § 112, sixth paragraph, provides: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. The Federal Circuit interpreted this language, stating that "[t]he word 'means' clearly refers to the generic description of an apparatus element, and the implementation of such a concept is obviously by structure or material." 0.1. Corp. v. Tekmar, 115 F.3d 1576, 1582 (Fed. Cir. 1997). The court further interpreted "the term 'steps' to refer to the generic description of elements of a process, and the term 'acts' to refer to the implementation of such steps." Id. at 1582-83. In other words, as recited in the paragraph, "structure and material go with means, acts go with steps." Id. at 1583. The court further explained that section 112, sixth paragraph, is implicated only when means plus function without definite structure are present and when steps plus function without acts are present. Id. Written Description 35 U.S.C. § 112, first paragraph, "contains two separate description requirements: a 'written description [i] of the invention, and [ii] of the manner and process of making and using [the invention']." Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1344 (Fed. Cir. 2010) (en bane) (quoting 35 U.S.C. § 112, i-f 1 (emphasis added)). "We have made clear that the written description requirement does not demand either examples or an actual reduction to practice; a constructive reduction to practice that in a 7 Appeal2017-004818 Application 12/803,901 definite way identifies the claimed invention can satisfy the written description requirement." Id. at 1352 (citation omitted). "[T]he level of detail required to satisfy the written description requirement varies depending on the nature and scope of the claims and on the complexity and predictability of the relevant technology." Id. at 1351 (citing Capon v. Eshhar, 418 F.3d 1349, 1357-58 (Fed. Cir. 2005)). "The description requirement of the patent statute requires a description of an invention, not an indication of a result that one might achieve if one made that invention." Regents of the Univ. of California v. Eli Lilly & Co., 119 F.3d 1559, 1568 (Fed. Cir. 1997). In other words, "The written description requirement also ensures that when a patent claims a genus by its function or result, the specification recites sufficient materials to accomplish that function." Ariad, 598 F.3d at 1352; see also LizardTech, Inc. v. Earth Res. Mapping, Inc., 424 F.3d 1336, 1344-46 (Fed. Cir. 2005) (invalidating claims on written description grounds because the specification disclosed only one specific method for solving one particular problem and, thus, does not entitle the inventor to claim generically any and all means for achieving the claimed objective). The court in Ariad explained that the patent law's intention is not to award patents for academic theories, even when groundbreaking. Patents are not awarded for academic theories, no matter how groundbreaking or necessary to the later patentable inventions of others. "[A] patent is not a hunting license. It is not a reward for the search, but compensation for its successful conclusion." Id. at 930 n.10 (quoting Brenner[ v. Manson], 383 U.S. [519,] 536, 86 S. Ct. 1033[ (1966)]). Requiring a written description of the invention limits patent protection to those who actually perform the difficult work of "invention"-that is, conceive of the complete and final invention with all its claimed limitations-and disclose the fruits of that effort to the public. 8 Appeal2017-004818 Application 12/803,901 That research hypotheses do not qualify for patent protection possibly results in some loss of incentive, although Ariad presents no evidence of any discemable impact on the pace of innovation or the number of patents obtained by universities. But claims to research plans also impose costs on downstream research, discouraging later invention. The goal is to get the right balance, and the written description doctrine does so by giving the incentive to actual invention and not "attempt[ s] to preempt the future before it has arrived." Fiers [ v. Revel], 984 F.2d [1164,] 1171 [(Fed. Cir. 1993)]. Ariad, 598 F.3d at 1353. Appellant cites In re Ghiron, 442 F.2d 985, 991(CCPA1971) for the proposition that "even if an apparatus is unavailable, it can still be sufficiently disclosed." Appeal Br. 15. In Ghiron, the court affirmed a rejection of the Board for insufficient enabling disclosure, finding that the Board had a reasonable basis for questioning the adequacy of the disclosure and shifting the burden to appellants to rebut the Board's challenge. Id. at 992. The invention in Ghiron was to a method that required a modification to prior art overlap computers in order to perform it. Id. at 991. The court affirmed the Board's determination that the appellants' illustration of these computer components as rectangles in a functional-type block diagram was insufficient disclosure to put a person of ordinary skill in the art in possession of the apparatus to carry out the claimed method. Id. at 992. "[T]he application must be adequate to teach how to practice the claimed method. If such practice requires particular apparatus, ... it is axiomatic that the application must therefore provide a sufficient disclosure of that apparatus if such is not already available." Id. at 991. Appellant also cites Expanded Metal Co. v. Bradford, 214 U.S. 366 ( 1909) in support of the patentability of a new method that requires the use of a newly invented machine. Appeal Br. 15. The Court in Expanded Metal 9 Appeal2017-004818 Application 12/803,901 acknowledged, "A new process may be invented or discovered, which may require the use of a newly-invented machine. In such a case, if both the process and the machine were invented by the same person, he could take separate patents for them." 214 U.S. at 382-383 (noting that a method of doing a thing "so clearly indicated that those skilled in the art can avail themselves of mechanism to carry it into operation" can be the subject of a valid patent). ANALYSIS Claim Interpretation We begin our analysis with an interpretation of the language of claims 5 and 6 to ascertain the scope of the claimed subject matter. The preambles of claims 5 and 6 are directed to a "method," yet each element in the body of the claims is expressed as "means for" performing a specified function. As noted above, the word "means" refers to a generic description of structure or material of an apparatus element. 0.1. Corp., 115 F.3d at 1582. A method claim, however, typically recites "steps" as elements of a claimed process. Id. at 1582-83. We understand both Appellant and the Examiner to have construed "means for" in these claims to refer to structure or material for performing the recited function. Final Act. 8; Appeal Br. 12. For purposes of advancing prosecution and addressing the rejections on appeal, and based on the arguments presented in this appeal, we interpret claims 5 and 6 as method claims that recite the steps of using each of the means plus function elements recited in the claims. In other words, we construe the claims as follows: 5. A method for combusting a bubble of thermonuclear fuel immersed within a substantially spherical, 10 Appeal2017-004818 Application 12/803,901 optically-reflective cavity filled with a transparent, laser-active fluid, comprising: (a) using means for positioning said fuel inside said cavity, whereby said fuel's location and movement can both be sensed and controlled, so that said fuel can be forced to occupy the optical focus region at the center of said cavity; (b) using means for increasing the pressure within said fluid, whereby said bubble can be compressed and quasi- adiabatically heated until it becomes incandescent; and ( c) using means for optically pumping said fluid, whereby photons, of certain (lasing) frequencies emitted from the incandescent fuel, will be amplified, reflect, and return to said fuel. 6. The method of claim 5, further comprising: using means for extracting energy, whereby said energy can be used to feed/drive a commercial-scale fusion power plant. Turning to the present claims and our interpretation for purposes of deciding the issues on appeal, we agree with the Examiner that the use of "means for" language in the claims invokes 35 U.S.C. § 112, sixth paragraph. As such, the scope of these claim steps is limited to using the structure and material disclosed in the Specification for performing the recited functions and equivalents thereof. 35 U.S.C. § 112, sixth paragraph. The Examiner provided an interpretation of the structure disclosed in the Specification corresponding to each of the recited elements of claim 5. Final Act. 8. Appellant provided citations to the Specification where information concerning each of the claim limitations3 can be found. Appeal Br. 7. 3 Appellant refers to the limitations in the claims as "[ s ]tep-plus-function claim elements." Appeal Br. 7. Had Appellant wished the claims to be interpreted as "step-plus-function" claim elements, and to thereby 11 Appeal2017-004818 Application 12/803,901 Claim 5 Preamble: The preamble of claim 5 recites a method for combusting a bubble of thermonuclear fuel. The preamble further recites structure, in that the fuel to be combusted is "immersed within a substantially spherical, optically-reflective cavity filled with a transparent, laser-active fluid." The body of the claim refers back to the fuel, cavity, and fluid recited in the preamble. The claim does not recite any particular thermonuclear fuel or any particular transparent, laser-active fluid. As such, the claim generically covers all such fuels and fluids. Step (a): The function recited in the "means for" limitation of step (a) is "positioning said fuel inside said cavity, whereby said fuel's location and movement can both be sensed and controlled." Thus, the "positioning" function encompasses both sensing and controlling the fuel's location. The structure and material disclosed in the Specification for controlling the movement of the fuel is a combination of flowing coolant and acoustic waves created using piezoelectric actuators. Spec. i-fi-175, 79, 105-121, Figs. 1, 2. The Specification discusses alternate embodiments that, instead of acoustic waves, transport the fuel using either a rod made from solidified coolant or valves to regulate flow coming from multiple inlets and going to multiple outlets. Id. i-f l 07. The Specification describes, however, that these alternate embodiments "have problems" because their control mechanisms encompass the acts disclosed in the Specification for performing the recited functions and equivalents thereof, the claim should have recited "step for." See 0.1. Corp., 115 F.3d at 1583 ("structure and material go with means, acts go with steps"). For purposes of this appeal, we understand Appellant, by virtue of using "means for" claim language to have intended the claims to encompass the structure and material disclosed in the Specification for performing the recited functions and equivalents thereof. 12 Appeal2017-004818 Application 12/803,901 would be exposed to harsh environmental conditions, the use of a rod limits the choice of coolant to materials that can be cast into solid rods of suitable quality, and the use of valves might have a difficult time coping with fluid turbulence. Id. As such, the Specification teaches that "[t]he preferred method of fuel locomotion is via acoustical transport." Id. i-f 108. The structure and material disclosed in the Specification for sensing the location of the fuel is an Archimedean Spiral Detector for sensing the horizontal x and y components of the bubble's location in combination with vertical linear sensor arrays for sensing the z component of the bubble's location. Id. i-fi-192-104, Figs. 6, 9, 10, 13-17. In the recited method, this structure is used to position the fuel in the optical focus region at the center of the spherical cavity. Step (b ): The function recited in the "means for" limitation of step (b) is "increasing the pressure within said fluid, whereby said bubble can be compressed and quasi-adiabatically heated." The structure and material disclosed in the Specification corresponding to this function is a combination of piezoelectric transducers to pre-compress the fuel and laser diodes emitting a laser pulse to further compress and heat the fuel. Spec. i-fi-162, 79, 173, Figs. 1--4. In the recited method, this structure is used to increase the pressure until the bubble becomes incandescent. Step ( c ): The function recited in the "means for" limitation of step ( c) is "optically pumping said fluid, whereby photons, of certain (lasing) frequencies emitted from the incandescent fuel, will be amplified, reflect, and return to said fuel." The structure and material disclosed in the Specification corresponding to this function are laser diodes that pump directly into the liquid within the sphere. Spec. i-fi-170, 79, 81-82, 401--443, 457, Figs. 1--4, 9, 10, 18. 13 Appeal2017-004818 Application 12/803,901 Claim 6 Claim 6 depends from claim 5 and further recites an additional limitation in "means for" format. The function recited in this limitation is "extracting energy, whereby said energy can be used to feed/drive a commercial-scale fusion power plant." The structure and material disclosed in the Specification corresponding to this function are piezoelectric energy harvesters (e.g., piezoelectric crystals). Spec. i-fi-168, 79, 266, 524-565, Figs. 1, 3, 4. First Ground of Rejection: Written Description Appellant's Specification presents a description of BSF that amounts to a research proposal and contains statements acknowledging unknowns and areas where further research is necessary. For instance, Appellant's Specification commences by explaining that the claimed method (BSF) "is not incremental on current technology, it is a giant leap into unexplored territory." Spec. i138. The Specification states that "ifBSF performs as expected ... it would be far superior to all [of our current energy producing technologies.]" Id. (emphasis added). The Specification concludes: I have not calculated a preferred embodiment for BSF, but I believe that, in theory, a set of optimal parameters can be calculated using a computer program. To do this, the program would first have to assign numerical values to every trade-off option. These numerical values are critical for making quantitative evaluations. Unfortunately, only a few of these parameters have been numerically quantified and are readily available; some can only be accessed using high-priced or high- security databases, while others must await future experimental results. Id. i1575 (emphasis added). Although the Specification characterizes BSF as "a transformational technology" (id. i138), as noted above, patents are not 14 Appeal2017-004818 Application 12/803,901 awarded for academic theories, no matter how groundbreaking (Ariad, 598 F.3d at 1353). As one example, the description of BSF provided in the Specification lacks adequate disclosure of the claimed "transparent, laser-active fluid" in which the claimed method would be capable of being performed. As explained below, according to the Specification, the viscosity and density of the fluid used in BSF is critical to both positioning of the fuel inside the cavity and to the ability of the fluid to act as a thermal blanket. The Specification describes one proposed fluid having a viscosity that is too high for BSF and another proposed fluid having a viscosity that is too low for BSF. It appears from the description in the Specification that more research must be done to identify a fluid suitable for use in BSF. Such research is not trivial in an area as complex and with as many unknowns as thermonuclear fusion. The Specification describes one problem that a fusion power plant must address, if it uses DT fuel, is preventing high-energy neutrons from escaping the reactor. Spec. ,-r 61. In BSF, to prevent neutron escape, "the fuel is positioned in the center of the reactor, in the blast zone, surrounded by a blanket that contains neutron absorbing lithium."4 Id. In BSF, the blanket is brought closer to the fuel compared to conventional distant blanket designs so as to lessen the amount of neutron-absorbing lithium necessary, and thus save expense, and to slow down the neutrons, greatly 4 "The glass mixture contains lithium that protects the metal sphere by absorbing neutrons" and "contains lead that absorbs x rays and prevents the surface of the sphere from being vaporized by the intense radiation that accompanies each thermonuclear explosion" to allow for a durable long-life container. Id.; see also id. at ,-r 281 (if FLiBe is used as the coolant, neutron multiplication is achieved using the beryllium in FLiBe ). 15 Appeal2017-004818 Application 12/803,901 extending the time available for Li collisions. Id. In other words, in BSF, the conventional blanket is turned "inside out" (i.e., the containment system is outside the lithium moderator). Id. i-f 72. "Fuel detonation only occurs where it is safe, at the center of the sphere, after being transported there by flowing coolant and acoustic pressure." Id. i-f 75. During BSF, "[a]t T = -10, a bubble of fuel is injected into the middle of the feed pipe below the base of the sphere and flows upward with the molten glass 'coolant' mixture." Id. i-f 79. At "T = -5, the bubble enters the sphere." Id. Piezoelectric transducers create acoustic waves to guide the bubble and launch compression waves to cause a sonoluminescent flash. Id. Thus, in BSF, the flowing coolant must have low enough viscosity to allow for transport of the bubble of fuel to the center of the cavity through the coolant fluid. On the other hand, the coolant must have high enough viscosity to rule out instabilities. The Specification describes that the prior art inertial confinement fusion (ICF) encounters turbulent mixing that can quench the fuel and prevent ignition. Id. i-f 63. The Specification describes that this mixing arises only in situations where low-density fluids push into high- density fluids, such as at the start of compression (when low-density, high- pressure plasma pushes the higher-density tamper material inward) and when the implosion stagnates and high-pressure fuel pushes the higher- density tamper material outward. Id.; see also id. i-f 229 (describing that Rayleigh-Taylor Instability (R TI) "occurs between two fluids of different densities when a light fluid pushes a heavier fluid"). 5 5 The Specification further describes that R TI is the major limiting feature of ICF and that "computer simulations have always overestimated the performance of both direct and indirect drive ICF implosion experiments" and "routinely underestimate the energy needed for ignition" and 16 Appeal2017-004818 Application 12/803,901 The Specification posits that BSF is "immune to this type of instability" because BSF uses high-density, high-pressure coolant material to surround and compress a lower-density, lower-pressure bubble. Id. ,-r 63; see also id. ,-r 233. The Specification describes that "[i]n BSF, the fuel is surrounded by an imploding wall of dense viscous liquid that confines it for a longer period of time; any outwardly directed expansions must first overcome the inwardly directed kinetic energy of the acoustic compression." Id. ,-r 64; see also id. ,-r 420 (describing that BSF evenly heats the entire mass of fuel, and the fuel is held together by a large quantity of pressurized, high- density coolant material that is moving inward at high velocity, which prevents the fuel from expanding outward, and allows extra time for additional laser passes to take place, resulting in maximum extraction of energy from the laser medium). The Specification describes that two primary fuels "being considered" are a gas composed of deuterium and tritium and a liquid lithium hydride, composed of tritium and deuterium isotopes, with a higher starting fuel density. Id. ,-r 77. The Specification describes "three candidate high- temperature liquid coolants: molten iron, molten glass, and molten fluoride salts." Id. ,-r 261 (eliminating molten iron because it would not function as a laser and tritium breeding blanket). The Specification provides examples of molten salts that are "worth considering" such as FliBe (LbBef 4). Id. ,-r,-r 262-264. The Specification describes that "[m]olten glass (silicon based) is not the best fluid to achieve high-speed bubble locomotion" because its viscosity "[ e ]xperiments in the real world have shown a substantially degraded thermonuclear performance, compared with these one-dimensional numerical simulations." Id. i-fi-1231-232. 17 Appeal2017-004818 Application 12/803,901 is too high. Spec. i-f 118. The Specification discloses that controlled 1 + mm per second movement possible in molten glass "is inadequate for BSF." Id. (emphasis added). The Specification states, "unless this method of acoustic bubble transport can be improved, the reactor will need to use a cooling fluid that is a little less viscous." Id.; see also id. i-f 574 ("Some of the details given in my examples of BSF were not optimal, for example, a glass mixture was specified for use as the coolant, but it is more likely that some other liquid satisfying all the appropriate characteristics would function better."). The Specification then describes that using FLiBe, which has the same viscosity as water at certain temperatures, allows bubbles to be moved through it at over 2 cm/ s under certain conditions. Spec. i-f 119 (describing that "FLiBe at 615Q C has the same viscosity as water"). The Specification states that "[t]his speed of locomotion is acceptable for BSF, but a higher viscosity fluid would still be preferred for other reasons (preventing Rayleigh-Taylor instabilities)." Id.; but see id. i-f 276 (describing the viscosity of FLiBe as "70 times higher" than that of water). The Specification discusses that the viscosity of the coolant surrounding the bubble is important to controlling instabilities: In the fluid surrounding the bubble, viscosity must be small for sound to be a wave process, both the threshold stress and temporal variations must be small for the waveform speed not to distort considerably from a constant, during propagation of a sound pulse in a medium. Shock waves in liquids are known to cause spherical gas bubbles to rapidly collapse and form strong reentrant jets in the direction of the propagating shock. Viscosity has a strong influence on the dynamics of surface oscillation, instabilities become weaker at higher viscosities. High viscosity might play a significant role in suppressing the jetting; recent experiments involving laser- induced bubble growth and collapse in viscous fluids suggest 18 Appeal2017-004818 Application 12/803,901 that higher viscosity fluids both suppress the strength of the jetting and slow the time scale of the collapse. Id. at i-f 376 (emphasis added). We understand Appellant to acknowledge in the Specification that the viscosity of molten glass is too high, rendering it "inadequate" for BSF, and that the viscosity of FLiBe is sufficiently low to allow for positioning of the fuel 6 but is so low that Rayleigh-Taylor instabilities become a concern. These instabilities are a major contributor to the unpredictability in this field of research. As acknowledged in the Specification, R TI is the major limiting feature of ICF and has had a profound impact on computer simulations attempting to estimate the energy needed for ignition. Id. i-fi-1231-232. The Specification also identifies "[ s Jome safety issues [with the use of FLiBe as the coolant fluid] that require further study" including "1) at high temperatures, will fluorine release as a gas or remain in the molten salt?" and "2) will tritium migrate from the FLiBe into the cooling system?" Id. i-f 278. For instance, the Specification discloses: [A Jn important concern regarding tritium produced in FLiBe is its propagation to other parts of the fusion system. Solubility of 6 As to the speed of locomotion available in FLiBe, the Specification cautions that "[t]he validity of these findings is, however, not beyond question, as several assumptions were made without full justification." Id. i-f 120. Nonetheless, the Specification states that using sound to move bubbles "has been demonstrated in the lab" and "[t]herefore it is reasonable to expect that a more powerful and accurately controlled acoustic driver should be able to move the bubbles quicker and position them more accurately." Id. i-f 120 (emphasis added). The Specification then refers to a mathematical model that could be used "with slight modifications" to enable its use in a BSF plant to generate and interact with an acoustical field sufficient to be used for the control of bubble locomotion. Id. i-f 121. The Specification does not describe, however, what modifications would need to be made to this model. 19 Appeal2017-004818 Application 12/803,901 hydrogen isotopes in FLiBe is very low. That means that even a small concentration of tritium produced in the FLiBe by neutron transmutation will have a very high chemical potential and will readily exit the FLiBe by whatever means are available. A particular concern in this regard is its ability to pass through the walls of heat exchanger tubes. Id. i-f 283; see also id. i-fi-1284-85 (describing other concerns with FLiBe ). Appellant admits in the Specification that he has not yet discovered a suitable liquid for the coolant, stating: If a molten fluoride salt could be found that was (1) laser active, (2) a breeder of tritium, (3) safe from accumulating harmful radioactive transmutations under neutron bombardment, (4) easy to process for tritium recovery, ( 5) non-corrosive, and ( 6) did not chemically react with the fuel, then it would be much preferred over molten glass, since molten glass has a viscosity similar to molasses and incurs significant frictional losses. Spec. i-f 265 (emphasis added). The science surrounding nuclear fusion is unpredictable and years of experimentation are often required in this field to test theories to the point at which actual success is achieved. See Email from Professor Kenneth S. Suslick to Appellant dated October 12, 2012 ("Your speculation and my speculation about what temperature might be reached under your hypothetic conditions will only be just that: speculation."). 7 For example, ICF has been studied for years, and researchers have faced many challenges in producing net energy from this approach. Spec. i-fi-118-19, 22, 32, 229-232. Thus, within this context, the level of detail required to satisfy the written description requirement is high due to the complexity and unpredictability in this field. See Ariad, 598 F.3d at 1351. 7 Appellant submitted this email to the Examiner on November 1, 2012. 20 Appeal2017-004818 Application 12/803,901 What is clear from the descriptions provided in the Specification is that Appellant did not have possession of the claimed invention at the time of filing of the application because the Specification does not describe a coolant fluid suitable for the claimed method. As admitted in the Specification, molten glass is not suitable as the coolant liquid for BSF due to its high viscosity and FLiBe is not suitable as the coolant liquid for BSF due to its low viscosity (and potential for R TI) and due to its safety concerns that require further study. The Specification admits that a suitable salt has yet to be discovered. For the reasons discussed above, the Specification does not describe any specific fluid capable of performing the claimed method and the skilled artisan would not be able to identify any such fluid based on the Specification's description. As such, the Specification does not provide an adequate written description of the claimed invention. The method claims cover any such liquid later discovered that fall within the claim's functional boundaries, leaving it to the nuclear industry to complete an unfinished invention. See id. at 1353. Claims 5 and 6 are inconsistent with the quid pro quo of the patent grant. Seeking a generic claim without disclosing one example assuredly falling within it runs afoul of the written description requirement of 35 U.S.C. § 112, first paragraph. See id. at 1349-55. That is, Appellant has not demonstrated possession of any, much less "sufficient," species to support these generic claims, and, as such, is attempting to overreach his contribution to the field. See id. For these reasons, we affirm the Examiner's rejection of claims 5 and 6 under pre-AIA 35 U.S.C. § 112, first paragraph, for failing to comply with the written description requirement. 21 Appeal2017-004818 Application 12/803,901 Second Ground of Rejection: Unpatentability over Bellak, Sorensen, and Dawson As discussed above in our interpretation of step (a) of claim 5, the structure and materials disclosed in Appellant's Specification corresponding to the claimed function of positioning said fuel inside said cavity includes flowing coolant, acoustic waves generated using piezoelectric actuators, an Archimedean Spiral Detector for sensing the position of the x and y components of the fuel's location, and vertical linear sensor arrays to sense the z component of the fuel's location. Sorensen discloses a pipe gun used for forming a pellet of condensed gas, such as hydrogen, tritium or deuterium, in situ within the gun's tube. Sorensen, col. 1, 11. 8-11. Sorensen describes that once the pellet has been formed in the gun's tube, it may be expelled from the tube using pressurized gas to inject the pellet into a reactor at the necessary high velocity. Id. at col. 2, 11. 34-37, col. 3, 11. 32-35. Sorensen's pellet gun, which injects pellets of condensed gas fuel using pressurized gas is not the same structure as disclosed in Appellant's Specification. Further, the Examiner has not explained adequately how Sorensen's structure is equivalent to Appellant's disclosed structure. Further, the Examiner has not explained how Sorensen's pellet gun could be used to perform the recited function of positioning a bubble of thermonuclear fuel within a cavity filled with a transparent, laser-active fluid. Therefore, we do not sustain the rejection of claims 5 and 6 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Bellak, Sorensen, and Dawson. OTHER MATTERS The rules of the US PTO require applicants to conduct their business with the Office with decorum and courtesy. 37 C.F.R. § 1.3. The rule 22 Appeal2017-004818 Application 12/803,901 provides for non-entry of papers presented in violation of this requirement and instructs, "[ c ]omplaints against examiners and other employees must be made in correspondence separate from other papers." Id. Appellant's Appeal Brief and Reply Brief do not comply with the requirement of this rule. These briefs are replete with discourteous statements about the Examiner. The statements are too numerous to itemize, however, one example in the Reply Brief, where Appellant describes the Examiner as "crooked, lazy, ignorant, and a liar," is particularly egregious. Reply Br. 34. Because Appellant is representing himself in this matter pro se and may not have been aware of Rule 1.3, we have not required Appellant to refile the briefs despite these statements. If, however, Appellant pursues further prosecution before the Office, the Office may refuse entry of any papers presented to the Office in violation of the requirement of decorum and courtesy in Rule 1.3. Further, to the extent Appellant is seeking, as part of this appeal, the Board to review procedural aspects of the Examiner's handling of the application, such as the Examiner's decision to make an Office action final (see Appeal Br. 16) and alleged failures by the Examiner to provide sufficient notice or respond to Appellant's arguments (see id. at 14, 18; Reply Br. 34), such procedural matters are reviewable by petition under 37 C.F .R. § 1.181 and are not within the jurisdiction of the Board. See MPEP §§ 706.07(c) and 1002.02(c) (providing that questions as to prematureness of a final rejection are reviewable by petition to the Director); see also In re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (stating that certain discretionary, procedural, or non-substantive decisions an examiner makes in the examination proceeding are not appealable to the board). As such, our 23 Appeal2017-004818 Application 12/803,901 review is confined to the written description and obviousness grounds of rejection. DECISION The decision of the Examiner rejecting claims 5 and 6 under pre-AIA 35 U.S.C. § 112, first paragraph, for failure to comply with the written description requirement is sustained. The decision of the Examiner rejecting claims 5 and 6 under pre-AIA 35 U.S.C. § 103(a) is not sustained. Because at least one ground of rejection as to each of the appealed claims is sustained, the decision is an affirmance. 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)(l )(iv). AFFIRMED 24 Copy with citationCopy as parenthetical citation