Ex Parte Lewis et al

Patent Trial and Appeal Board

Mar 18, 2015

12412411 (P.T.A.B. Mar. 18, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MICHAEL L. LEWIS, MICHAEL L. BOONE, and
HOWARD A. PENDLEY II
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Appeal 2013-001455
Application 12/412,411
Technology Center 3600
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Before EDWARD A. BROWN, LYNNE H. BROWNE, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Michael L. Lewis et al. (Appellants)
1
appeal under 35 U.S.C. § 134
from the Examiner’s decision finally rejecting claims 1–6, 9–15, and 18.
The Examiner’s sole rejection of claims 7, 8, 16, 17, 19, and 20 is
withdrawn, and therefore, these claims are not subject to this Appeal. Ans.
4. We have jurisdiction over this appeal under 35 U.S.C. § 6(b).

1
According to Appellants, the real party of interest is Westinghouse Electric
Company LLC. Appeal Br. 2.
Appeal 2013-001455
Application 12/412,411

2

SUMMARY OF DECISION
We AFFIRM-IN-PART.

INVENTION

Claim 1 is illustrative of the claimed invention and reads as follows:
1. A nuclear fuel assembly grid comprising:
a first plurality of spaced, parallel, elongated straps;
a second plurality of spaced, parallel, elongated straps
positioned orthogonal to said first plurality of spaced, parallel,
elongated straps and aligned in a regular pattern so that the
intersection of each set of four adjacent straps defines a cell,
some of which are designed to support fuel rods, with an extent
of each of the first and second straps that border each cell
forming a wall of the cell;
wherein at least one wall of the cells that are [sic]
designed to support fuel rods has a dimple arrangement that
extends from the wall into the cell from a “dog bone” shaped
cutout in the wall of the cell.

Appeal Br. 12, Claims App.

THE REJECTIONS
2

Claims 2, 4, 5, 11, 13, and 14 are rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite.
Claims 1–6 and 10–15 are rejected under 35 U.S.C. 102(b) as being
anticipated by Frisch (US 3,377,254; iss. Apr. 9, 1968).

2
The Examiner’s rejections of claims 5 and 14 under 35 U.S.C. § 112,
second paragraph, and claims 7, 8, 16, 17, 19, and 20 under 35 U.S.C.
§ 102(b) are withdrawn. Ans. 4.
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Application 12/412,411

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Claims 3 and 12 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Frisch and King (US 4,756,878; iss. July 12, 1988).
Claims 9 and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Frisch and Hatfield (US 5,331,678; iss. July 19, 1994).

ANALYSIS
Drawings — Compliance with 37 CFR 1.83(a)
The Examiner’s objection to the amendments of Figures 5a–5c does
not allege the introduction of new matter into the claims, or affect the
claims, thereby necessitating the rejection of any of the claims under 35
U.S.C. § 112, first paragraph.
3
Accordingly, we do not reach the Examiner’s
objection to the drawings. See Manual of Patent Examining Procedure, §
608.04(c) (8th ed., rev. 7, July 2008), citing 37 C.F.R. §§ 1.181, 1.191.

Claims 2, 4, 5, 11, 13, and 14 — Indefiniteness
The Examiner finds that there is insufficient antecedent basis for the
limitation “the core” in claims 2, 4, 11, and 13, and that “[c]laims 5 and 14
are rejected due to dependency.” Final Act. 6. Appellants argue that the
limitation “the core” is part of the larger phrase “when the nuclear fuel
assembly grid is placed in the core of an operating nuclear reactor” and as
such, the core is an inherent part of an operating nuclear reactor and not an
element of the claim. Appeal Br. 7. We determine that the claim term “the
core” is part of a larger phrase that defines a context in which the invention
operates, and in particular, a statement of intended use, and as such, the

3
See Final Action mailed March 9, 2012, p. 2 (“Final Act.”).
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scope of claims 2, 4, 5, 11, 13, and 14 is reasonably ascertainable by one
skilled in the art. Thus, we do not sustain the Examiner’s rejection of claims
2, 4, 5, 11, 13, and 14.

Claims 1–6 and 9–15 — Anticipated by Frisch
Appellants state that claims 9, 10, and 18 stand or fall with claim 1;
claims 3, 4, 5, and 11–14 stand or fall with claim 2; and claim 15 stands or
falls with claim 6. Appeal Br. 2.
Claim 1
Appellants first argue that “Frisch does not teach a dimple at all, just a
backup spring.” Appeal Br. 8. In particular, Appellants argue that
[i]n Frisch, the structure the Examiner is referring to as a
dimple arrangement (46), is referred to in Frisch as a
deflectable tab that, at the beginning of life of the fuel
assembly, is spaced from the fuel rod and is a backup for the
primary spring should the primary spring fail during reactor
operation. . . .
. . . .
Thus, Frisch does not teach wherein at least one wall of
the cells that are [sic] designed to support to [sic] fuel rods has
a dimple arrangement that extends from the wall into the cell
from a “dog bone” shaped cutout in the wall of the cell as
called for in Claim 1. . . .
Appeal Br. 8. Appellants contend that “the art makes a clear distinction
between dimples and springs; one is relatively compliant and the other is
relatively stiff.” Id. Appellants explain that
[i]t is well known that fuel assembly grid springs are compliant
in a direction transverse to the axis of the fuel rod to apply
pressure against the fuel rods against an opposing dimple that is
relatively noncompliant in the transverse direction to the axial
dimension of the fuel rod. Otherwise, if both the springs and
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dimples were compliant in the transverse direction, there would
be little or no support for the fuel rod. As shown in Figures
5A–5C, though the top shelf of the pedestal 76 may tilt as the
fuel rod is loaded to prevent scoring of the cladding, the base let
78 of the pedestal is not compressed and is relatively
noncompliant in the transverse direction. While the difference
in compliance between the springs and dimples are not
expressly set forth in the claim, it is an inherent requirement of
their function that is well known in the industry.
Reply Br. 2.
The Examiner finds that Appellants’ “drawings (Figs. 5A–5C) show a
dimple that is compliant to a fuel rod” and “[t]herefore the tabs of the
applied prior art read on the limitation of a ‘dimple arrangement that extends
from the wall into the cell.’” Ans. 5.
Appellants do not distinguish the structure of the claimed dimple
arrangement from the structure of Frisch’s deflectable tab 46. Rather,
Appellants argue that the claim term “dimple arrangement” inherently
requires relative noncompliance, or stiffness, in the transverse direction to
the axial dimension of the fuel rod. Appeal Br. 8; Reply Br. 2. Appellants
describe this requirement in the context of “a spring-dimple support
geometry,” wherein “[t]he geometry of the dimples and springs needs to be
carefully determined to provide adequate rod support through the life of the
assembly.” Spec. ¶ 5. Notably, claim 1 neither recites a spring, nor a
dimple arrangement that is noncompliant relative to a spring.
Frisch generally discloses a grid member with “resilient means, such
as dimples.” Frisch, col. 3, ll. 21–32 (emphasis added). Frisch specifically
describes these dimples as including a first embodiment of the resilient
means having cantilever spring tabs 42 for lateral support of fuel cell rods
22, which embodiment also includes pairs of deflectable tabs 46 serving as
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secondary support for the fuel rods should spring tabs 42 fail, and a second
embodiment wherein the resilient means comprises strips 156, each with a
projection 162. Id. at col. 4, ll. 36–col. 5, ll. 3; Id. at col. 8, ll. 12–19. Frisch
explains that “strips 156 serve as resilient supporting members for the
engaged fuel elements; and, since they are each structurally in the form of a
beam supported at each of its ends, there is relatively greater assurance
against setting or failure than is the case of the cantilever tabs 42.” Id. at col.
8, ll. 13–14. Frisch’s embodiments do not involve the “spring-dimple
support geometry,” as described in Appellants’ Specification, but instead
only Frisch’s tabs 46 or projections 162 provide lateral support to the fuel
rod. Thus, Frisch provides evidence that a dimple need not inherently be
noncompliant, rigid, or stiff, as Frisch’s tabs 46 and projections 162 are
described as being resilient.
On this record, Appellant’s contentions appear to represent mere
attorney argument without supporting evidence. See In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984) (Arguments and conclusions
unsupported by factual evidence carry no evidentiary weight). Accordingly,
we disagree that the Examiner erred in finding that Frisch’s deflectable tabs
46 disclose Appellants’ dimple arrangement as recited in claim 1.
Second, Appellants assert, for the first time in the Reply Brief, that
Frisch’s H cutout anticipates Appellants’ dog bone cutout, in that “they are
distinctly different shapes that serve distinctly different functions and one
could not practically be substituted for the other.” Reply Br. 2. This
argument is untimely and is not considered. See 37 C.F.R. § 41.41(b)(2)
(2012) (“Any argument raised in the reply brief which was not raised in the
appeal brief, or is not responsive to an argument raised in the Examiner’s
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answer . . . will not be considered by the Board for purposes of the present
appeal, unless good cause is shown.”); In re Hyatt, 211 F.3d 1367, 1373
(Fed. Cir. 2000). Here, no good cause has been shown by Appellants.
For the reasons stated above, we sustain the Examiner’s rejection of
claim 1, and therefore, claims 9, 10, and 18.

Claim 2
Regarding claim 2, which depends from claim 1, the Examiner finds
that Frisch’s Figure 15 depicts deflectable tab 46 having an edge on the
downstream side of the fuel rod that is rounded in a direction away from the
fuel rod. Final Act. 7–8; Ans. 5. Appellants argue that no edges of Frisch’s
tabs 46 contact the fuel rod, and although the tab is rounded, the edge of the
rounded tab is not rounded. Appeal Br. 9. We agree with Appellants that
the Examiner’s finding is in error. With respect to tab 42, Frisch describes
that “[t]o facilitate insertion of the fuel rods 22 and to minimize the
engagement surfaces, the taps [sic] 42 are rounded as indicated by the
reference character 45 (FIG. 15).” Frisch, col. 4, ll. 54–58. Although the
same rounded surface structure is depicted on tabs 46, the edges of tabs 42
and 46 do not appear to be in a position to contact the fuel rod during
loading, nor are the edges of such tabs shown as rounded.
Accordingly, we do not sustain the Examiner’s rejection of claim 2,
and claims 3, 4, and 5, depending therefrom. Independent claim 11 recites
the same limitations as claim 2, and therefore, for the reasons stated above,
we also do not sustain the Examiner’s rejection of claim 11, and claims 12,
13, and 14 depending therefrom, as anticipated by Frisch.

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Claim 6
The Examiner finds that “the ‘dog-bone’ shaped cutout (47) is parallel
to the axial direction of the plurality of straps (horizontal direction in Fig.
[15]).” Ans. 6. We agree. It is evident from Frisch’s Figures 1 and 5 that
fuel elements 22 extend through grid 34, which is comprised of straps 36,
such that fuel elements 22 are perpendicular to the longitudinal dimension of
the straps and parallel to the width of the straps. Further, Figure 15 depicts
the horizontal rod of dog-bone cutout 47 to be perpendicular to the fuel
elements 22, and therefore, dog-bone cutout 47 (and tab 46) is parallel to the
longitudinal dimension of the straps and perpendicular to the width of the
straps. As depicted in Appellants’ Figures 3 and 5A–5C, Appellants’ edge
72 of dimple 28, which is cut along rod 34 of dog-bone 66, contacts the fuel
rod during loading, and therefore, Appellants’ dog-bones and dimples are
presented in the same orientation as depicted Frisch’s Figure 15, wherein the
longitudinal dimension of the strap is horizontal in both Appellants’ Figure 3
and Frisch’s Figure 15. The limitation of claim 6 stating that the “straps
have an axial dimension that extends along the elongated dimension of the
straps” must refer to the longitudinal axis of the strap. The limitation of
claim 6 stating that “the ‘dog-bone’ shaped cutout and the dimple extend”
must refer to the dimension of the dog-bone defined by the rod and
corresponding structure of the dimple. Thus, we find no error in the
Examiner’s finding that Frisch’s dog-bone shaped cutout and dimple extend
parallel to the axial dimension of the strap that extends along the elongated
dimension of the straps.
Accordingly, we sustain the Examiner’s rejection of claim 6 and also
claim 15.
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Claims 3 and 12 — Unpatentable over Frisch and King
The Examiner relies on King for disclosing “a spacer grid (18) with a
dimple arrangement (31) that is rounded by coining.” Final Act. 10, citing
King, col. 1, ll. 5458. Because we do not sustain the Examiner’s rejection
of claim 2, and the Examiner’s reliance on King does not cure the
deficiencies in Frisch, we also do not sustain the Examiner’s rejection of
claims 3 and 12.

Claims 9 and 18 — Unpatentable over Frisch and Hatfield
Appellants merely state that claims 9 and 18 stand or fall with claim 1.
Appeal Br. 2. Appellants do not present any arguments, apart from claim 1,
as to why the Examiner’s findings with respect to Hatfield are in error.
Because we sustain the Examiner’s rejection of claim 1 above, we also
sustain the Examiner’s rejection of claims 9 and 18.

SUMMARY
We REVERSE the Examiner’s rejection of claims 2, 4, 5, 11, 13, and
14 under 35 U.S.C. § 112, second paragraph.
We AFFIRM the Examiner’s rejection of claims 1, 6, 9, 10, 15, and
18 under 35 U.S.C. § 102(b).
We REVERSE the Examiner’s rejection of claims 2–5 and 11–14
under 35 U.S.C. § 102(b).
We REVERSE the Examiner’s rejection of claims 3 and 12 under
35 U.S.C. § 103(a).
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We AFFIRM the Examiner’s rejection of claims 9 and 18 under
35 U.S.C. § 103(a).
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)(1)(iv).

AFFIRMED-IN-PART

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