Ex Parte Hyde et alDownload PDFPatent Trial and Appeal BoardSep 12, 201612316446 (P.T.A.B. Sep. 12, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/316,446 12/12/2008 123334 7590 09/14/2016 TerraPower, LLC 330 120th Ave. NE, Suite 100 Bellevue, WA 98005 FIRST NAMED INVENTOR Roderick A. Hyde 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. 0806-032-003-COOOOl 5427 EXAMINER KEITH, JACK W ART UNIT PAPER NUMBER 3646 NOTIFICATION DATE DELIVERY MODE 09/14/2016 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): docketing@terrapower.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RODERICK A. HYDE, MURIEL Y. ISHIKAWA, NATHAN P. MYHRVOLD, and LOWELL L. WOOD, JR. Appeal2013-000667 Application 12/316,446 Technology Center 3600 Before STEFAN STAICOVICI, LYNNE H. BROWNE, and WILLIAM A. CAPP, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the rejection of claims 102, 104, and 107. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal2013-000667 Application 12/316,446 CLAIMED SUBJECT MATTER Claim 102, which is representative of the claimed subject matter, is reproduced below: 102. A nuclear fission reactor comprising: a burning wavefront heat generating region of a nuclear fission reactor, the burning wavefront heat generating region being configured to initiate and propagate a propagating nuclear fission deflagration wave; a condensed phase density fluid heat absorbing material flowable in thermal contact with the burning wavefront wave heat generating region; and a heat extraction region substantially out of thermal contact with the burning wavefront heat generating region. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Kingston Baxi us 3,096,263 us 4,303,474 July 2, 1963 Dec. 1, 1981 E. Teller et al. ("Teller"), Completely Automated Nuclear Power Reactors for Long-Term Operation: III. Enabling Technology for Large- Scale, Low-Risk Affordable Nuclear Electricity, Energy, The International Journal (2003). REJECTIONS Claims 102, 104, and 107 stand rejected under 35 U.S.C. 103(a) as being unpatentable over Teller and Baxi or Kingston. 2 Appeal2013-000667 Application 12/316,446 DISCUSSION Appellants argue claims 102, 104, and 107 together. See Appeal Br. 28-81. We select independent claim 102 as the representative claim, and claims 104 and 107 stand or fall with claim 102. The Examiner finds that Teller discloses all of the limitations of claim 102 "except for condensed phase density fluid heat absorbing material." Final Act. 3. 1 The Examiner further finds that "Baxi teaches that for fast reactors, either liquid metal such as liquid sodium or a gas such as carbon dioxide or helium can be used as core coolant" and that "Kingston et al. also teach that for a fast reactor, a gas such as helium or a liquid metal such as mercury, sodium, alloys of sodium and potassium, lead-bismuth alloys and bismuth, can be used as core coolant." Final Act. 4 (citations omitted). Based on these findings, the Examiner determines that it would have been obvious to modify the apparatus, as disclosed by Teller et al., by the teaching in either one of Baxi or Kingston et al. to use liquid metal instead of helium for the heat absorbing material, because such modification is no more than the substitution of one coolant material for a fast reactor with another well known coolant for said fast reactor. Id. at 4--5. As an initial matter, we do not address Appellants' citations to case law which may or may not accurately represent current law or be relevant to this Appeal. Appeal Br. 5-28. Each case must be decided on its own merits. In re Gyurik, 590. F.2d 1012, 1016 (CCPA 1979). Nor do we comment on 1 The Final Action from which this Appeal is taken as well as the Answer both refer to the Final Action mailed May 5, 2011, as setting forth the rejection. Accordingly, we refer to the May 5, 2011, Final Action throughout this Decision. 3 Appeal2013-000667 Application 12/316,446 Appellants' restatement of the rejections. As noted supra, we refer to the Final Action mailed May 5, 2011. Appellants contend that the Examiner fails to set forth a prima facie case of obviousness because (i) Teller et al. teaches away from making the proposed modification; (ii) the proposed modification of the Teller et al. reference renders the Teller et al. reference unsatisfactory for its intended purpose; (iii) the proposed modification of the Teller et al. reference changes the principle of operation of the Teller et al. reference; and (iii) it is not obvious to try to make the proposed modification. Appeal Br. 29. Appellants' arguments in support of these contentions are voluminous and repetitive. See Appeal Br. 29-81; see also Reply Br. 2-13. 2 We address each of the enumerated contentions once and do not address further iterations of the same argument. Appellants' first argument is that Teller teaches away from the proposed modification. See, e.g., Appeal Br. 29. However, Appellants do not identify where Teller "criticize[s], discredit[s], or otherwise discourage[s]" the use of liquid metal. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). We will not read into a reference a teaching away from a proposed combination when no such language exists. See Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006). Thus, Appellants' argument is unconvincing. 2 In accordance with 37 C.F.R. § 41.41 (b)(2), lacking a showing of good cause, we do not consider the arguments raised in the Reply Brief which are not responsive to an argument raised in the Answer. 4 Appeal2013-000667 Application 12/316,446 Appellants' second argument is that the proposed modification would render Teller unsatisfactory for its intended purpose. See, e.g., Appeal Br. 29. In support of this argument, Appellants contend that Teller's intended purpose is to provide a reactor which "must not and cannot be accessed by human maintenance personnel for any reason whatsoever," and which "function[s] fully automatic[ally] and obviously safe from all types of human error" because it is constructed underground." Appeal Br. 66, 70. Appellants explain that the proposed modification would make the reactor subject to ASME Section XI, Division 3 Rules for Inspection and Testing of Components of Liquid-Metal Cooled Plants, which require inspections, and that such inspections could not take place as Teller's reactor is inaccessible. See id. However, Appellants do not explain why Teller's reactor would not work as intended if the helium is replaced with liquid metal. The fact that such a reactor would not comply with ASME rules is inapposite as ASME rules are subject to change. The fact that a reactor in accordance with the proposed modification might require a change in ASivIE rules does not render that reactor unsatisfactory for its intended purpose of generating power. Appellants present no evidence or persuasive argument that use of liquid metal would prevent Teller's reactor from being constructed underground and fully automatic and obviously safe from all types of human error. Thus, Appellants do not apprise us of error. Appellants further argue that the proposed modification would render Teller unsatisfactory for its purpose of being a fundamentally new design of a nuclear power reactor. See Appeal Br. 69. Appellants' argument is disingenuous. Being a fundamentally new design is a description of Teller's reactor, not a purpose of Teller's reactor. 5 Appeal2013-000667 Application 12/316,446 Appellants' third argument is that the proposed modification changes the principle of operation of Teller's reactor. See Appeal Br. 73. Again, Appellants' argument is based on the contention that the proposed modification will make Teller's reactor subject to inspection per ASME rules. See Appeal Br. 7 4-7 6. However, as discussed supra, this argument is not on point. Appellants do not explain why replacing Teller's helium with liquid metal would cause Teller's reactor to operate in a different manner. Rather, as noted by the Examiner (Final Act. 4), Teller explicitly teaches that other heat absorbing materials can be used. See Teller p. 36. Thus, Appellants do not apprise us of error. Appellants' fourth and final argument is that it would not be obvious to try other coolants in view of Baxi or Kingston. See Appeal Br. 76. Appellants' argument is not persuasive because the rejection does not rely upon an "obvious to try" rationale. See Final Act. 4. Rather, as discussed supra, Teller explicitly teaches the use of other coolants and the rejection relies upon a simple substitution rationale. Id. Thus, Appellants do not apprise us of error. For these reasons, we sustain the Examiner's decision rejecting claim 102, and claims 104 and 107, which fall therewith. DECISION The Examiner's rejection of claims 102, 104, and 107 is AFFIRMED. 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 6 Copy with citationCopy as parenthetical citation