Ex Parte Feugier et al

Patent Trial and Appeal Board

May 31, 2017

10577748 (P.T.A.B. May. 31, 2017)

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.
10/577,748 06/18/2007 Andre Feugier 11000569.1016 2865
23280 7590 06/02/2017
Davidson, Davidson & Kappel, LLC
589 8th Avenue
16th Floor
New York, NY 10018
EXAMINER
BRADFORD, ELIZABETH
ART UNIT PAPER NUMBER
1746
NOTIFICATION DATE DELIVERY MODE
06/02/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ddk @ ddkpatent .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDRE FEUGIER, LUC DE TOLLENAERE,
VERONIQUE PERES, and MARIJN GYSEN1
Appeal 2015-008012
Application 10/577,748
Technology Center 1700
Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and
N. WHITNEY WILSON, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL2
1 The real party in interest is AREVA NP.
2 In explaining our Decision, we cite to the Substitute Specification dated
April 27, 2006 (Sub. Spec.), Final Office Action dated May 6, 2014 (Final),
the Appeal Brief dated February 2, 2015 (Appeal Br.), the Examiner’s
Answer dated July 7, 2015 (Ans.), and the Reply Brief dated September 2,
2015 (Reply Br.).
Appeal 2015-008012
Application 10/577,748
STATEMENT OF CASE
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner’s decision to reject claims 18 and 20-35. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
The claims are directed to a process for the manufacture of nuclear
fuel pellets. Claim 18 is illustrative:
Claim 18: A process for manufacture of nuclear fuel
pellets through sintering of a material containing uranium
dioxide UO2 obtained from a powder originating from a process
for a dry route conversion of uranium hexafluoride UF6
comprising:
obtaining the powder directly by the UF6 hexafluoride
dry route conversion process;
placing the powder in a vessel of a vibratory grinding
mill containing moving, compressing and mixing bodies,
wherein the moving bodies are wholly free within the interior
of the vessel and move in three noncoplanar axes with the
powder during vibration of the vibratory grinding mill;
agitating the vessel with an unbalanced motor of the
vibratory grinding mill such that the whole vessel is subjected
to three-dimensional vibratory movement and the powder
moves within a volume of the vessel in the three noncoplanar
axes to be compressed between moving bodies and walls of the
vessel to form a particulate material in the vessel having a
density in an uncompacted state of at least 1. 7 g/cm3, the
particulate material in the vessel being formed of particles
having a particle size of between 10 pm and 150 pm; and
shaping the particulate material obtained by agitation in
the vessel into raw fuel pellets that undergo sintering.
Appeal Br., claims appendix.
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Application 10/577,748
The Examiner maintains the following rejections:
A. Claims 18, 20—24, and 27—35 under 35 U.S.C. § 103(a) as obvious
over Gradel in view of Liberge, Sutcliff, and Connolly;
B. Claims 22, 23, 25, and 26 under 35 U.S.C. § 103(a) as obvious over
Gradel in view of Liberge, Sutcliff, and Connolly, and further in view
of Cope and Zimmerman; and
C. Claims 32 and 34 under 35 U.S.C. § 103(a) as obvious over Gradel in
view of Liberge, Sutcliff, and Connolly, and further in view of
Vandergheynst.
Appellants focus their arguments on the rejection of claim 18. Lor all
the rejections, the issues are the same: Have Appellants identified a
reversible error in the Examiner’s finding of a reason within the prior art for
using the SWECO vibratory mill of Connolly in the homogenization step of
Gradel to increase the flowability of Gradel’s UO2 powder and to achieve
the 50 pm to 150 pm powder particles of Gradel or a reversible error in the
Examiner’s finding that such particles would inherently form a material
having a density in an uncompacted state of at least 1.7 g/cm3?
Appellants have not identified reversible errors in the disputed
findings.
OPINION
The Examiner’s rejection is based on the conclusion that “[i]t would
have been obvious to one of ordinary skill in the art at the time of the
invention to use a [SWECO] vibratory ball mill to homogenize/mill the
powder in the teaching of Gradel.” Final 5. The Examiner finds such mills
were known in the nuclear fuel art at the time of the invention, relying upon
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a teaching of using such a mill found in Connolly, and upon teachings in
Liberge and Sutcliffe describing ball milling to provide micronization and
micro-homogenization or comminution, which provide evidence that various
types of ball mills were known and selection was based upon the
characteristics desired in the milled powder. Final 2—6.
As found by the Examiner, Gradel teaches manufacturing nuclear fuel
pellets through sintering of a material containing uranium dioxide UO2
obtained from a powder originating from a process for dry route conversion
of uranium hexafluoride UF6. Final 2—3. There is no dispute that GradeFs
process includes a step of obtaining the powder directly by the UF6
hexafluoride dry route conversion process, shaping the powder into raw
pellets, and sintering. Compare Final 2—3, with Appeal Br. 5—12, and Reply
Br. 2—3; see also Gradel col. 11,11. 7—11. Gradel further mixes the UO2
powder with lAOg powder (mixing of Fig. 1), premixes a portion of this
mixture with dopant to form a mastermix (premixing of Fig. 1), and mixes
the UO2/U3O8 mixture with the UCE/CECVdopant mastermix (main mixing
of Fig. 1). Gradel col. 11,11. 8—43; Fig. 1.
According to Gradel, the UO2 powder “is preferably subjected to
homogenization, in order to increase the free-flowing properties and, for
example, to eliminate agglomerates and cohesive powder fractions.” Gradel
col. 11,11. 18—21. Gradel also teaches homogenizing or milling before or
during the main mixing step. Gradel col. 11,11. 37-42.
Connolly describes a process of blending a binder into UO2 powder
before pressing and sintering. Connolly col. 2,11. 34—56. Connolly
discloses that a number of different blenders can be used including high
shear or intensive blenders such as vibratory mills, ball mills, and centrifugal
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mills. Connolly col. 2,11. 57—61. Example 1 of Connolly uses a SWECO
vibratory mill containing % inch aluminum cylinders as media to achieve
blending. Connolly col. 3,11. 29—34. The Examiner finds, and Appellants
do not dispute, that Connolly’s SWECO vibratory ball mill with cylindrical
balls is the same type of mill as disclosed by Appellants as having an
unbalanced motor that causes the vibrations required by claim 18. Compare
Final 5, with Appeal Br. 9—10.
The Examiner finds that “it was known to optimize the characteristics
of the outlet powder based upon the milling technology used.” Final 3,
citing Liberge. Liberge supports this finding. Although Liberge is mostly
concerned with fine and ultrafme dry milling of nuclear powders to less than
1 pm (Liberge p. 7 “Mains [sic] characteristics of dry ball milling” 12),
Liberge indicates that the characteristics of the milled powder
(granulometry, level of agglomeration, specific surface, density, flowability,
etc.) depends on the milling technology used (Liberge pp. 3^4
“Process/Technology interdependency in powders processes”). It was also
known that the particular reduction in particle size is a function of the form,
size, and nature of the grinding elements (Liberge p. 6 “Description of dry
ball milling” 12).
Appellants recognize that SWECO mills were known at the time of
the invention, but Appellants contend they were known to obtain a powder
of reduced particles size. Appeal Br. 9, citing to Sub. Spec. 12:15—18.
Appellants contend that “Connolly does not add anything to the general
knowledge of one of ordinary skill in the art regarding the increase of
particle size using a vibratory mill.” Appeal Br. 9.
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This argument and the related arguments concerning the reduction of
particle size are not persuasive for several reasons.
First, as pointed out by the Examiner (Ans. 10), claim 18 does not
preclude a reduction in particle size. Claim 18 places no limits on the initial
particle size, but only recites the end result particle size.
Second, Connolly indicates that the SWECO mill may be used to
blend rather than reduce particle size. As acknowledged by Appellants,
Connolly teaches blending a binder into powder. Appeal Br. 10.
Third, Liberge provides evidence that those of ordinary skill in the art
understood how to routinely optimize the particle size, density, and other
properties to achieve the desired particle size and flowability in the powder
product.
Given that (1) Gradel teaches that the powder includes finely
dispersed particles of a size on average of 50 pm to 150 pm, a range
completely within the range of claim 18, (2) Gradel teaches that this particle
size has particularly advantageous effects on the grain size established
during the sintering process, (3) Gradel also teaches homogenizing and/or
milling down to particles sizes of substantially less than 2 mm, which
improves the free-flowing properties (Gradel col. 7,11. 33—50), (4) Connolly
teaches that various mills including SWECO mills were known for blending,
and (5) Liberge and Sutcliffe provide evidence that such mills were also
used to reduce particle size and enhance flowability, a preponderance of the
prior art supports the Examiner’s finding that the prior art provides a
suggestion for selecting a SWECO mill for use in Gradel’s mixing and
homogenizing steps.
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Appellants also urge that the Examiner has not supported the
determination that “it would have been expected that the uncompacted
density of the powder of the prior art (being of the same composition and
particle size and having a compacted physical density the same as disclosed
by applicant) must also have been the same as claimed by applicant.” Final
6. Appellants contend that the Examiner’s reasoning is completely
conclusory and that no evidence of record establishes any correlation
between the resulting pressed pellet density and the density after ball
milling. Appeal Br. 11.
We do not agree that the Examiner’s finding is conclusory and
without evidentiary support. The Examiner cites various portions of Gradel
and the Specification, which support the finding. Final 5—6. Appellants do
not dispute those specific findings other than to say that the there is a lack of
evidence correlating pressed pellet density and the density after ball milling.
Appeal Br. 11. The Examiner’s finding is not based solely on such a
correlation, it is based on the similarities of the feedstock, processing, and
end product as whole. Particularly, the Examiner’s finding is based on the
presumption that Gradel’s particles, which are of a size within the range of
claim 18, and have a composition the same or substantially the same as
Appellants’ particles, and are provided by milling to render them free
flowing would have the same or similar uncompacted density before a
pressing and sintering operation that produces sintered pellets of the same or
similar properties as those of the Appellants. Where patentability rests upon
a property of the claimed material not disclosed within the art, the PTO has
no reasonable method of determining whether there is, in fact, a patentable
difference between the prior art materials and the claimed material. In re
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Best, 562 F.2d 1252, 1255 (CCPA 1977). Therefore, where the claimed and
prior art products are identical or substantially identical, or are produced by
identical or substantially identical processes, the PTO can require an
applicant to prove that the prior art products do not necessarily possess the
characteristics of the claimed product. Id. The evidence cited by the
Examiner reasonably supports the Examiner’s finding such that the burden
shifted to Appellants. Appellants do not rely upon any probative evidence
showing that, in fact, the density is necessarily different.
To the extent that the Examiner’s rejection rests upon a finding of
routine optimization to obtain an expected density (Final 6), Liberge
discloses that density is a characteristic of the milled powder to be controlled
by milling. Liberge, pp. 3^4 “Process/Technology interdependency in
powder processes” 16. Given that Gradel seeks to optimize the particles for
the same process of pressing and sintering as Appellants and teaches a
particle size within the range of claim 18, the evidence sufficiently supports
a conclusion of obviousness based on routine optimization of the
uncompacted density for achieving an optimized sintered product.
Appellants do not reply upon any convincing evidence of unexpected
results commensurate in scope with claim 18, which does not require any
increase in particle size.
After reviewing the totality of the evidence, we determine a
preponderance of the evidence supports the disputed findings.
CONCLUSION
We sustain the Examiner’s rejections.
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DECISION
The Examiner’s decision is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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