Ex Parte JIANG et al

Patent Trials and Appeals Board

May 25, 2018

13691891 - (D) (P.T.A.B. May. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/691,891 12/03/2012 XIAOY AN (JANE) JIANG
26353 7590 05/30/2018
WESTINGHOUSE ELECTRIC COMPANY, LLC
1000 Westinghouse Drive
Suite 141
Cranberry Township, PA 16066
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.
ARF2004-010 CON 8950
EXAMINER
MCGUE, FRANK J
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
05/30/2018 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@westinghouse.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 XIAOY AN (JANE) JIANG, YIBAN XU, and
ZESES E. KAROUTAS
Appeal2017-007236
Application 13/691,891
Technology Center 3600
Before JAMES P. CALVE, ARTHUR M. PESLAK, and
ANTHONY KNIGHT, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Xiaoyan (Jane) Jiang et al. ("Appellants") appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision rejecting claims 1, 21, and 22. 1 We
have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 Westinghouse Electric Company LLC is identified as the real party in
interest. Appeal Br. 1.
Appeal2017-007236
Application 13/691,891
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is representative of the claimed subject
matter.
1. A support grid for a nuclear fuel assembly, said nuclear
fuel assembly including a generally cylindrical fuel rod with a
diameter, said support grid comprising:
a plurality of generally tubular frame members defining
frame assembly including a plurality of generally cylindrical
cells, each said cell including at least one sidewall,
at least one generally cylindrical tubular member
including a cell contact portion with a greater diameter and at
least one helical fuel rod contact portion with a lesser diameter,
said cell contact portion and said fuel rod contact portion joined
by a transition portion, said greater diameter being generally
equivalent to said cell radius, and said lesser diameter being
generally equivalent to said fuel rod diameter such that a fuel
rod disposed in said tubular member would engage said lesser
diameter; and
each of said at least one tubular member disposed in one
cell of said plurality of generally circular cells so that said cell
contact portion engages said cell sidewall.
REJECTIONS
1) Claims 1, 21, and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Nylund (US 5,778,035, issued July 7, 1998) and
Patterson (US 4,726,926, issued Feb. 23, 1988). Ans. 2.
2) Claims 1, 21, and 22 are rejected under 35 U.S.C. § 103 (a) as
unpatentable over Marmonier (US 4,056,441) issued Nov. 1, 1977)
and Patterson. Id. at 4.
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3) Claim 1 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Nylund in view ofBeuchel (FR 2531258, published July 27,
1983). Id. at 5.
4) Claims 21 and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Nylund, Beuchel, and Patterson. Id. at 7.
5) Claim 1 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Marmonier and Beuchel. Id.
6) Claims 21 and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Marmonier, Beuchel, and Patterson. Id. at 8-9.
DISCUSSION
Rejection 1
The Examiner finds that Nylund discloses most of the limitations of
claim 1 including "a plurality of generally cylindrical cells." Ans. 2 ( citing
Nylund, Figs. 1, 2, 5:40-41 and Patterson Fig. 1). The Examiner finds that
Patterson discloses "a helical fuel rod contact portion ... which engage[ s] a
fuel rod" and concludes that "it would have been obvious to modify Nylund
by using the helical fuel rod contact portion of Patterson in order to provide
coolant cross flow between coolant flow channels." Id. at 3.
Appellants contend that the Examiner erred by asserting "that a single
Nylund element discloses both the helical tubular members and the
cylindrical cells." Appeal Br. 12. Appellants refer to Figure 6 of Nylund
and argue that the rejection finds that Nylund's element 7f corresponds to
both the recited tubular frame members and recited cylindrical cells which
according to Appellants is improper because claim 1 also requires that the
tubular members be "disposed in" a cell. Id. at 13-14.
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Application 13/691,891
In the Answer, the Examiner compares Nylund's element 7f shown in
Nylund's Figure 6 with Appellants' claimed tubular member 50 shown in
Appellants' Figures 4 and 5. Ans. 14. Based on this comparison, the
Examiner maintains that Nylund's element 7f also "defines a cylindrical
cell." Id. For the following reasons, we do not sustain this rejection.
Claim 1 requires two distinct elements. The first are "a plurality of
generally tubular frame members" that include "a plurality of generally
cylindrical cells." Further, claim 1 requires that "each of said at least one
tubular member disposed in one cell." Appellants' Figure 4, referred to by
the Examiner in the Answer, illustrates an embodiment with square cells 42
in which tubular frame members 50 are disposed. Spec. 8-9, Fig. 4.
Appellants' Figure 10 illustrates an embodiment with cylindrical cells 42B
in which tubular members 50 are disposed. Id. at 10, Fig. 10. While we
appreciate the Examiner's reference to the correspondence between
Nylund's Figure 6 and Appellants' Figure 4, claim 1 requires "generally
cylindrical cells" in which "tubular frame members" are disposed. The cells
in which Nylund's tubular members 7f are disposed are square rather than
cylindrical. See Nylund Fig. 6. The Examiner's finding that Nylund's
tubular supports 7f correspond to both the claimed "plurality of generally
cylindrical cells" and "at least one generally cylindrical tubular member"
( Ans. 14) effectively reads one of those limitations out of claim 1, which
recites them as separate elements such that one of the tubular members is
disposed in one cell. See also Spec. Fig. 10. The Examiner has thus not
established that Nylund discloses a "plurality of cylindrical cells" with "at
least one tubular member disposed in one cell" as required by claim 1. As
the rejection is based on an erroneous factual finding, the conclusion of
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Application 13/691,891
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, thus, do not sustain the rejection of claim 1 and claims
21 and 22 which depend from claim 1 as unpatentable over Nylund and
Patterson. 2
Rejection 2
The Examiner finds that Marmonier discloses most of the limitations
of claim 1. Ans. 4--5. The Examiner finds that Patterson discloses "a helical
fuel rod contact portion ... which engage[s] a fuel rod" and concludes that
"it would have been obvious to modify Marmonier by using the helical fuel
rod contact portion of Patterson in order to provide coolant cross flow
between coolant flow channels." Id. at 5.
Appellants argue that the Examiner does not make a specific finding
that Marmonier discloses a plurality of cylindrical cells. Appeal Br. 25. In
the Answer, the Examiner argues that Appellants "definition of 'generally
cylindrical' is very broad" and encompasses the cells described in
Appellants' Specification at page 8 and shown in Appellants' Figure 5. Ans.
16. The Examiner then finds that element 4 of Marmonier "is cylindrical as
shown in Figs. 4 and 5." Id.
2 We note that claim 22 recites dependence from claim 7. Appeal Br. 3 7
(Claims App.). This appears to be a typographical error as a result of
Appellants' inadvertent withdrawal of claims 7 and 8, which were re-entered
as claims 21 and 22 for the purposes of appeal in an after final amendment.
March 16, 2016 Adv. Act. We treat claim 22 as dependent from claim 21
for the purposes of this appeal.
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Appeal2017-007236
Application 13/691,891
As with Rejection 1, the Examiner apparently misapprehends the
scope of claim 1. Page 8 of Appellants' Specification describes the square
cells shown in Appellants' Figure 4. Cells 42B in Appellants' Figure 10 are
described as "cylindrical." Spec. 10:14. Element 4 in Marmonier is "a tube
element" through which "the can 2 of the fuel pin ... passes." Marmonier,
3:29, 59---60. Thus, Marmonier's element 4 may correspond to the recited
generally cylindrical tubular members, each of which contacts a fuel rod, but
the Examiner has not identified any generally cylindrical cells in which these
tubular members of Marmonier are disposed. As the Examiner has not
established that Marmonier discloses a plurality of generally cylindrical
cells, we do not sustain the rejection of claims 1, 21, and 22 as unpatentable
over Marmonier and Patterson.
Rejections 3 and 4
In Rejections 3 and 4, the Examiner relies on the same findings based
on Nylund and Marmonier discussed above in connection with Rejections 1
and 2. Ans. 5---6, 7-8. In both rejections, the Examiner finds that Beuchel,
rather than Patterson, discloses "a helical fuel rod contact portion ... which
engage[s] a fuel rod." Id. at 6, 8. In responding to Appellants' arguments in
the Appeal Brief, the Examiner notes that Beuchel discloses "helical tubular
members 33 and a cylindrical cell 27." Id. at 14. For the following reasons,
we do not sustain these rejections.
In the rejections, the Examiner does not rely on Beuchel for disclosure
of helical tubular members or cylindrical cells. Ans. 5---6, 7-8. Other than
the cursory statement in the Answer, the Examiner does not provide any
explanation of how Beuchel's elements 33 and 27 satisfy these limitations of
claim 1, or how they modify Nylund or Marmonier. The Examiner relies on
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Beuchel in the rejection for disclosure of the helical fuel rod contact portion
only. Ans. 6, 8. This finding does not cure the deficiencies in the disclosure
of Nylund and Marmonier discussed above in connection with rejections 1
and 2. We, thus, do not sustain the rejections of claims 1, 21, and 22 as
unpatentable over Nylund and Beuchel and Marmonier and Beuchel.
DECISION
The Examiner's decision rejecting claims 1, 21, and 22 is reversed.
REVERSED
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