Ex Parte Harkness et al

Patent Trial and Appeal Board

Jan 25, 2018

13461821 (P.T.A.B. Jan. 25, 2018)

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.
13/461,821 05/02/2012 Alexander W. Harkness RTU 2011-008 1098
26353 7590 01/29/2018
WESTINGHOUSE ELECTRIC COMPANY, LLC
1000 Westinghouse Drive
Suite 141
Cranberry Township, PA 16066
EXAMINER
BURKE, SEAN P
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
01/29/2018 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):
guerral @ wes tinghou se. com
spadacjc @ westinghouse.com
coldrerj @ westinghouse. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXANDER W. HARKNESS and
WILLIAM EDWARD CUMMINS
Appeal 2016-008539
Application 13/461,821
Technology Center 3600
Before WILLIAM A. CAPP, BRANDON J. WARNER, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Alexander W. Harkness and William Edward Cummings
(“Appellants”) appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1—11.1 We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.
1 Appellants identify Westinghouse Electric LLC as the real party in interest.
Br. 2.
Appeal 2016-008539
Application 13/461,821
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A method of refueling a nuclear reactor comprising a
reactor vessel having an open upper end with a flange, the reactor
vessel housing a core including a plurality of fuel assemblies and
an upper internals structure supported above the core, and a head
with a mating flange for sealing the open upper end of the reactor
vessel; the method comprising the steps of:
removing the reactor vessel head;
placing the reactor vessel head in a first storage location
outside of a path above the reactor vessel;
lifting the upper internals structure out of the reactor vessel
to a second storage location outside of the path above the reactor
vessel;
detachably installing a cylindrical tank having an open
lower end and an open upper end, on the reactor vessel flange so
that the reactor vessel flange substantially supports the
cylindrical tank;
detachably sealing the lower end of the cylindrical tank to
the reactor vessel and a penetration on a side of the cylindrical
tank to a refueling canal that is connected to a spent fuel pool;
raising a level of reactor coolant within the reactor vessel
to at least partially fill the cylindrical tank substantially to a level
equal to a level of a coolant within the spent fuel pool;
opening the refueling canal; and
employing a refueling machine at least in part supported
above the cylindrical tank, to transfer a number of the fuel
assemblies within the core, through the penetration and the
refueling canal to a storage location in the spent fuel pool.
REJECTIONS
1) Claims 2—6 are rejected under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement.
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Application 13/461,821
2) Claims 1—11 are rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite.
3) Claims 1 and 7—11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Costes (US 5,075,070, issued Dec. 24, 1991)
and Westinghouse Electric Corp., The Westinghouse Pressurized
Water Reactor Nuclear Power Plant (1984) (“WPWR”).
4) Claims 2—6 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Costes, WPWR, and Balog (US 7,668,281 B2, issued Feb. 23,
2010).
DISCUSSION
Rejection 1
The Examiner rejects claim 2 for failing to comply with the written
description requirement of 35 U.S.C. § 112, first paragraph,2 because “there
exists no support in the specification for the element ‘supporting a radiation
shield in the form of an inverted cask with an open lower end, above the
open upper end of the reactor vessel. Final Act. 4. The Examiner notes
that Appellants’ Specification does not use the term “inverted cask” or
disclose the support relationship of an inverted cask. Id. at 4—5.
Appellants contend that Paragraphs 18 and 20 of the Specification, as
well as Figures 6 and 7, provide support for this claim limitation. Br. 6.
Appellants do not direct us to any use of the term “inverted cask” in the
Specification, but argue that the Specification’s reference to “shielding bell
2 The Examiner also refers to enablement in the rejection. Final Act. 5.
Given the first sentence of the rejection, as well as the substance thereof, we
treat the rejection as a written description rejection only. We also note that
Appellants argued the rejection as a written description rejection, not an
enablement rejection. See Br. 5—6.
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Application 13/461,821
64” supports the term “inverted cask” in claim 2. Id. Appellants further
refer us to dictionary definitions as follows:
As can be seen from the attached excerpts .. . from Webster’s
unabridged dictionary, “bell shape” is defined as “the shape in full or
in outline of a vertical section of an inverted cup with flaring rim and
convex crown. Similarly, a “diving bell” is defined as an early diving
apparatus consisting of a steel cylinder or box open only at the bottom
and supplied with compressed air by a hose. As can be seen from the
excerpt from the American Heritage Dictionary, “cask” is defined as a
barrel of any size. Thus, “bell” and “inverted cask” are synonymous.
Id.
The Examiner responds that cask “has a specific meaning in the art to
describe a container for storing spent nuclear fuel.” Ans. 3. The Examiner
also responds that even if “cask” does not have a specific meaning in the art,
“a cask is not a bell.” Id. For the following reasons, we sustain the rejection
of claim 2.
The first paragraph of 35 U.S.C. § 112 contains a written description
requirement that is separate and distinct from the enablement requirement.
AriadPharms., Inc. v. EliLilly & Co., 598 F.3d 1336, 1340 (Fed. Cir. 2010)
(en banc). To satisfy the written description requirement, the specification
must describe the claimed invention in sufficient detail that one skilled in the
art can reasonably conclude that the inventor had possession of the claimed
invention. Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1562—63 (Fed. Cir.
1991). Specifically, the specification must describe the claimed invention in
a manner understandable to a person of ordinary skill in the art and show
that the inventor actually invented the claimed invention. Id.; Ariad, 598
F.3d at 1351.
In this case, Appellants argue that “cask,” which is not even used (let
alone specially defined) in the Specification, is equivalent to a “bell” based
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Application 13/461,821
upon several disparate dictionary definitions. However, if Appellants
desired to modify the ordinary definition of “cask” to be equivalent to “bell,”
the Specification must “‘set out his uncommon definition is some manner
within the patent disclosure’ so as to give one of ordinary skill in the art
notice of the change” in meaning. In re Paulsen, 30 F. 3d 1475, 1480 (Fed.
Cir. 1994) (citations omitted). In the absence of a special definition of the
term “cask” in the Specification, we agree with the Examiner that one of
ordinary skill in the art would not reasonably conclude that Appellants
possessed the invention as recited in claim 2. We, thus, sustain the written
description rejection of claim 2 as well as claims 3—6, which depend from
claim 2.3
Rejection 2
The Examiner rejects claim 1 as indefinite under 35 U.S.C. § 112,
second paragraph, because the claim limitations “‘detachably’
installing/sealing” are unclear. According to the Examiner, the limitations
“appear to impart some sort of intended use subsequent to the process.”
Final Act. 5.
Appellants contend that the use of “‘[djetachably’ infers structure that
is configured to be readily separated.” Br. 7. Appellants argue that the
limitations at issue are functional limitations and are not unclear. Id. The
Examiner responds that the claim limitations are indefinite because there is a
“near-infinite number of ways something can be detachably installed or
3 Appellants are amenable to amending claim 2 by replacing “inverted cask”
with “shielded bell.” Br. 6. This replacement term appears to be adequately
supported. See Spec. 118.
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Application 13/461,821
sealed” and “one of ordinary skill in the art would not know which possible
embodiment falls within the claims.” Ans. 4.
“[W]e apply the approach for assessing indefmiteness approved by the
Federal Circuit in Packard, i.e., ‘[a] claim is indefinite when it contains
words or phrases whose meaning is unclear.”’ Ex parte McAward, No. 2015-
006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential)
(quoting In re Packard, 751 F.3d 1307, 1310, 1314 (Fed. Cir. 2014)). As the
language in 35 U.S.C. § 112, second paragraph, “of ‘particularity]’ and
‘distinctness]’ indicates, claims are required to be cast in clear — as opposed
to ambiguous, vague, indefinite —terms.” In re Packard, 751 F.3d 1307,
1313 (Fed. Cir. 2014). The breadth of a claim, however, is not to be equated
with indefmiteness. See e.g., In re Miller, 441 F.2d 689, 693 (CCPA 1971).
The Specification describes “[a] reactor vessel head with a mating
flange seals [that] off the open upper end of the reactor vessel.” Spec. 1 8.
Further, the “method comprises the steps of removing the reactor vessel
head” and then a cylindrical tank “is installed on the reactor vessel flange
and the lower end of the cylindrical tank is then sealed to the reactor vessel
flange.” Id.', see also id. 120. While the limitations in claim 1 contain
broad language, the claims are not indefinite because one of ordinary skill in
the art, after reviewing the Specification, would reasonably understand the
scope of claim 1. We, therefore, do not sustain the rejection of claim 1 and
claims 2—11, which depend from claim 1, under 35 U.S.C. § 112, second
paragraph.
Rejection 3
The Examiner finds that Costes discloses many of the limitations of
claim 1 including “the reactor flange substantially supports the cylindrical
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Application 13/461,821
tank.” Final Act. 7 (citing, Costes, Fig. 2, element 34). Appellants contend
that “Costes does not teach supporting the bulk head on the reactor vessel
flange. The bulk head is supported on the containment ledge adjacent
reactor wall and reactor vessel flange.” Br. 8.
Costes discloses reactor vessel 4 with “a flange 10 for fixing the cover
12.” Costes, 3:64—65, Fig. 2. The upper portion of the reactor 30 is
surrounded by bulkhead 24.4 Id. at Figs, la, 2. Costes also discloses a “pool
20 used for the handling of the nuclear fuel” located above the reactor
vessel. Id. 3:25—26, Fig. la. Element 34 in Costes is a metal bellows
connecting reactor flange 10 to the pool bottom to prevent water from
penetrating around the vessel. Id. 3:68-4:2. Costes discloses “a machined
metal bearing 36 welded to the pool bottom around the vessel and permitting
the bearing of the bulkhead 24.” Id. 4:3—5.
We appreciate the Examiner’s reference to bellows 34, which is
connected to reactor flange 10. Costes, however, discloses that bearing 36,
which is welded to the pool bottom, supports bulkhead 24. The Examiner
has not directed us to any disclosure that Costes’s reactor flange 10
substantially supports the bulkhead as required by claim 1. As the rejection
of claim 1 is based on an erroneous factual finding, the conclusion of
obviousness cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA
1967) (holding that “[t]he legal conclusion of obviousness must be
supported by facts. Where the legal conclusion is not supported by facts it
cannot stand.”). We, therefore, do not sustain the rejection of claim 1 or
4 The Examiner finds that Costes’s bulkhead 24 corresponds to the recited
cylindrical tank. Ans. 4.
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Application 13/461,821
claims 7—11, which depend directly or indirectly from claim 1, under 35
U.S.C. § 103(a).
Rejection 4
Claims 2—6 depend directly or indirectly from claim 1. Br. 13 (Claims
App.). The Examiner rejects these claims based on Costes, WPWR, and
additional disclosure from Balog. Final Act. 9—11. The Examiner does not
rely on the additional disclosure from Balog to cure the deficiency in the
rejection of claim 1 discussed above. We, therefore, do not sustain the
rejection of claims 2—6 under 35 U.S.C. § 103(a).
DECISION
The Examiner’s decision rejecting claims 2—6 under 35 U.S.C. § 112,
first paragraph, is affirmed.
The Examiner’s decision rejecting claims 1—11 under 35 U.S.C.
§112, second paragraph, is reversed.
The Examiner’s decision rejecting claims 1—11 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)(l)(iv).
AFFIRMED-IN-PART
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