Ex Parte Krieg

Patent Trial and Appeal Board

Jan 13, 2017

12770870 (P.T.A.B. Jan. 13, 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.
12/770,870 04/30/2010 David Jerome Krieg ARF 2007-004 1520
26353 7590 01/18/2017
WF S TTN (TH OT TSF. FT FFTRIF POMP ANY T T C EXAMINER
1000 Westinghouse Drive
Suite 141
MCGUE, FRANK J
Cranberry Township, PA 16066 ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
01/18/2017 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):
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 DAVID JEROME KRIEG
Appeal 2014-001095
Application 12/770,8701
Technology Center 3600
Before LINDA E. HORNER, THOMAS F. SMEGAL, and
JASON W. MELVIN, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
David Jerome Krieg (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision2 under 35 U.S.C. § 103(a) rejecting claims
1—21 as unpatentable over Heibel (US 5,490,184, iss. Feb. 6, 1996),
Czemiejewski (US 3,932,885, iss. Jan. 13, 1976), and Boyd (US 6,493,412
Bl, iss. Dec. 10, 2002). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is Westinghouse Electric
Company LLC. Br. 2.
2 Appeal is taken from the adverse decision of the Examiner as set forth in
the Final Action, dated January 28, 2013 (“Final Act.”).
Appeal 2014-001095
Application 12/770,870
CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below and
illustrates the claimed subject matter, with disputed limitations emphasized.
1. A method of monitoring power distribution in a core of a
pressurized water reactor, the method comprising:
providing a core monitoring system;
providing a plurality of excore detectors;
taking a single movable incore or fixed—incore flux map
to generate nodal calibration factors and a reference point of the
current excore detector response and measured peripheral axial
offset, the nodal calibration factors being generated by dividing
the measured three-dimensional power distribution from the flux
map with the predicted power distribution at the same core
conditions;
performing calculations to simulate axial power
oscillations including at least one of (a) performing a series of
rod maneuvers, and (b) performing a series of xenon oscillations,
wherein the rod maneuvers and the xenon oscillations are used
to change the axial offset;
multiplying the nodal calibration factors with the resultant
three dimensional power distribution calculations to correct the
predicted results to the expected measured results; and
using the results to develop a relationship between the
peripheral assembly axial offset and the core axial offset and the
peripheral assembly axial offset and the excore detector
response,
wherein the multiplying of the nodal calibration factors
provides the accurate calibration of the excore detector response
to core average axial offset.
ANALYSIS
Obviousness of Claims 1—21 over Heibel, Czerniejewski, and Boyd
Claims 1, 3, 8, 11, 12, 15, 20, and 21
Appellant argues claims 1,3,8, 11, 12, 15, 20, and 21 together in
contesting the rejection of these claims as obvious over Heibel,
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Appeal 2014-001095
Application 12/770,870
Czemiejewski, and Boyd. See Br. 10-27. We select claim 1 as the
representative claim for this group, and the remaining claims stand or fall
with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). Appellant presents
arguments under separate headings for dependent claims 2, 4—7, 9, 10, 13,
14, and 16—19 (Appeal Br. 18—21), which we address infra.
To reject claim 1, the Examiner relies on Heibel for teaching
essentially all of the steps including, inter alia,
performing] calculations to simulate axial power oscillations
including at least one of performing a series of rod maneuvers
(col 3, lines 40-55) and uses the results to develop a relationship
between the peripheral assembly axial offset and the core axial
offset and the peripheral assembly axial offset and the excore
detector response (col 7, lines 23—45).
Final Act. 2—3 (emphasis added). While acknowledging that “Heibel does
not explicitly teach performing a series of xenon oscillations,” the Examiner
determines that
Czemiejewski [discloses] the real-time dynamic simulation of a
nuclear power plant that includes a control and monitoring
console for operating the reactor and monitoring three
dimensional physical values and does teach performing a series
of xenon oscillations, wherein the rod maneuvers and the xenon
oscillations are used to change the axial offset and [for]
multiplying the nodal calibration factors with the resultant three
dimensional power distribution calculations to correct the
predicted results to the expected measured results.
Id. at 3 (citing Czemiejewski, abstract, col. 14,11. 25—33, col. 15,11. 10-15,
and figure 95/1 A) (emphasis added).
From the foregoing, the Examiner determines that “[i]t would have
been obvious ... to use the xenon oscillation as taught by Czemiejewski in
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Application 12/770,870
the core of Heibel in order to have the neutron flux increases and decreases
proportionally from the top to the bottom.” Id. at 3.
While also acknowledging that
Heibel and Czemiejewski do not explicitly teach wherein the
multiplying of the nodal calibration factors provides the accurate
calibration of the excore detector response to core average axial
offset, [but that] Boyd has a pressurized water reactor (PWR)
which is calibrated by recording the thermocouple temperature
measurements (abstract) and further teaches that the multiplying
of the nodal calibration factors provides the accurate calibration
of the excore detector response to core average axial offset.
Id. at 3^4 (citing Boyd, col. 4,11. 30-40; col. 6,1. 63 to col. 7,1. 10).
From the foregoing, the Examiner determines that “[i]t would have
been obvious ... to use the calibrations as taught by Boyd in the core of
Heibel and Czemiejewski in order to provide a nodal model consistent with
the conditions of the moveable detector measurements provided by the
model files” Id. at 4 (citing Boyd, col. 7,11. 5—15).
Appellant first argues that “Heibel fails to provide any disclosure or
suggestion of the calibration of the excore detectors,” and “does not use a
xenon oscillation to be able to correct power,” relying on the Heibel
Declaration. See Br. 15—16. However, in that claim 1 recites “performing a
series of xenon oscillations” in the alternative, the Examiner explains that
“the claim language is met if the calculations are performed using only rod
maneuvers” as taught by Heibel, because “[calculations involving xenon
oscillations are not required.” Ans. 11. We agree, noting that conditional
steps in a method claim need not be found in the prior art if, under the
broadest scenario, the method need not invoke the steps. See Ex parte
Schulhauser, 2013-007847, 2016 WL 6277792, at *3-6 (PTAB April 28,
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Appeal 2014-001095
Application 12/770,870
2016 (citing In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004)).
Furthermore, Appellant is simply attacking Heibel in isolation for
lacking support for findings not relied on by the Examiner, rather than
addressing the Examiner’s combination of Heibel, Czemiejewski, and Boyd.
Nonobviousness cannot be established by attacking references individually
when the rejection is predicated upon a combination of prior art disclosures.
See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
As the Examiner explains, Czemiejewski teaches “the use of
calculations performed using xenon oscillations,” including “how xenon
oscillations arise in a reactor,” the “monitoring [of] those xenon
oscillations,” and “performing calculations using the xenon oscillation data.”
Ans. 11 (citing Czemiejewski, col. 14,11. 4—13; col. 14,1. 25—col. 15,1. 20).
Appellant has not apprised us of any error in the Examiner’s findings or
conclusions, and we find none.
Appellant next relies on the Boyd Declaration, where at paragraph 12,
Mr. Boyd testifies because “my patent discloses the calibration of
thermocouples, not excore detectors,” that “my patent assumes the excore
detectors are accurately calibrated ” and therefore “does not provide any
teaching or suggestion with regard to how to calibrate excore detectors.”3
See Br. 16-17.
3 We agree with the Examiner that “the affidavits [of Heibel, Boyd, and
Krieg] under 37 CFR 1.132 filed 25 October 2012 are insufficient to
overcome the rejection of claims based upon the cited references as set forth
in the last Office action because Appellant's arguments fail to comply with
37 CFR 1.111 (b) because they amount to a general allegation that the
claims define a patentable invention without specifically pointing out how
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Application 12/770,870
However, the Examiner reasons that because “[AJppellant admits that
Boyd does teach calibration of thermocouples [that] are located outside the
core (excore),” and because “a thermocouple detects temperature,” that “the
Boyd thermocouple is an excore detector which is calibrated as claimed.”
Ans. 11 (citing Boyd, col. 7,11. 1—14). Again Appellant has not apprised us
of any error in the Examiner’s findings or conclusions, and we find none.
Appellant also asserts that “neither the references individually, nor in
combination, can properly be said to disclose or suggest the instant
invention, as claimed,” that “to find otherwise would require an improper
application of hindsight having first had the benefit of reviewing the instant
invention,” and concludes that “[o]ne cannot use hindsight reconstruction to
depreciate the claimed invention.” Br. 17. However, as discussed supra, the
Examiner cites teachings in the references in articulating reasons for
combining the references as proposed in the rejection. Appellant does not
identify any knowledge that the Examiner relied upon that was gleaned only
from Appellant’s disclosure and that was not otherwise within the level of
ordinary skill at the time of the invention. See In re McLaughlin, 443 F.2d
1392, 1395 (CCPA 1971); see also Radix Corp. v. Samuels, 13 USPQ2d
1689, 1693 (D.D.C. 1989) (“[A]ny obviousness inquiry necessarily involves
some hindsight.”).
Further, the declarants state their opinions that: (1) “the instant
invention was in fact not obvious in view of the Heibel, Boyd et al. and/or
Czemiejewski patents (2) the references do not “teach or suggest that any
previous inventor has utilized the claimed method;” and (3) the claimed
the language of the claims patentably distinguishes them from the
references.” Ans. 13—14.
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Application 12/770,870
method is “a material improvement over the known prior art.” Heibel
Declaration, paras. 11, 14, 15; Boyd Declaration, paras. 11, 14, 15; and
Krieg Declaration, paras. 12, 16, 17. These declarations, however, provide
only general statements as to nonobviousness without any specific
explanation challenging the Examiner’s articulated reasoning, taken from the
explicit teachings of the references themselves, for modifying Heibel with
the teachings of Czemiejewski and Boyd in the manner claimed.
For the foregoing reasons, we discern no error in the Examiner’s
findings and sustain the Examiner’s unpatentability rejection of claims 1,3,
8, 11, 12, 15, 20, and 21 over Heibel, Czemiejewski, and Boyd.
Claim 2
Appellant contends that “nowhere does the portion of Heibel cited by
the Examiner disclose or suggest the nodal calibration factors being
determined in accordance with the specific expression recited in the Claim
2.” Br. 18. However, the Examiner explains that “Heibel generates the
nodal calibration factors by dividing (ratio) the measured power (present
detection current) from the flux map with the predicted power (detector
current at base time) at the same core conditions.” Ans. 12 (citing Heibel,
col 2,11. 20-38). Again Appellant has not apprised us of any error in the
Examiner’s findings or conclusions, and we find none.
Claim 4
Appellant recites the additional limitations of dependent claim 4, after
contending that since the references do not “teach or suggest the calibration
method of claim 1, the references also clearly fail to disclose or suggest the
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Application 12/770,870
refined recital of Claim 4.” Br. 18—19. However, we agree with the
Examiner that “Appellant's arguments fail to comply with 37 CFR 1.111 (b)
because they amount to a general allegation that the claims define a
patentable invention without specifically pointing out how the language of
the claims patentably distinguishes them from the references.” Ans. 12.
Further, such statements do not constitute a separate argument for
patentability of claim 4 pursuant to 37 C.F.R. § 41.37(c)(l)(iv). See In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the Board had
reasonably interpreted the same language in the prior rule under 37 C.F.R.
§ 41.37(c)(l)(vii) as requiring “more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art”).
Claim 5
Regarding claim 5, Appellant contends that “none of the references
provide any disclosure or suggestion of recalibrating BEACON.” Br. 19
(citing to various paragraphs in the Declarations of Heibel, Boyd, and
Krieg). However, the Examiner correctly points out that “Boyd discusses
calibrating BEACON.” Ans. 12. See Boyd, col. 8,11. 5—15.
Claim 6 and 7
In reciting portions of the limitations added by dependent claims 6
and 7, Appellant contends that the references relied upon to reject claim 1,
do not provide “any disclosure or suggestion of updating the core monitoring
system to accommodate conditions ... in accordance with Claims 6 and 7.”
Br. 19. Appellant’s statements do not constitute a separate argument for
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Appeal 2014-001095
Application 12/770,870
patentability of claims 6 and 7 pursuant to 37 C.F.R. § 41.37(c)(l)(iv). See
In re Lovin, 652 F.3d at 1357. Also, Appellant’s contentions again are
merely general allegations that fail to comply with 37 CFR 1.111 (b), for the
same reasons stated supra, as to claim 4. Furthermore, the Examiner
explains how the references disclose the limitations of claims 6 and 7. See
Ans. 13.
Claims 9, 10, 13, 14, and 16—19
Appellant contends that the additional limitations recited by
dependent claims 9 and 10 are not taught by the references which do not
“teach or suggest performing xenon oscillations to calibrate excore
detectors.” Br. 19. Appellant asserts similar contentions regarding
dependent claims 13, 14, and 16—19. Id. at 19—21. However, as we have
previously determined, claim 1 is not limited to a method employing “xenon
oscillations.” Thus, Appellant’s contentions are not responsive to the
Examiner’s rejections.4 See Final Act. 6—10.
For the foregoing reasons, we also sustain the Examiner’s
unpatentability rejection of claims 2, 4—7, 9, 10, 13, 14, and 16—19 over
Heibel, Czemiejewski, and Boyd.
DECISION
The Examiner’s decision to reject claims 1—21 under 35 U.S.C.
§ 103(a) is AFFIRMED.
4 In an appeal under 35 U.S.C. § 134(a), it is the Examiner’s final rejection
that we review. See In re Webb, 916 F.2d 1553, 1556 (Fed. Cir. 1990).
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Application 12/770,870
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
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