Ex Parte Pop et al

Patent Trial and Appeal Board

Feb 14, 2014

11713144 (P.T.A.B. Feb. 14, 2014)

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.
11/713,144 03/02/2007 Mihai G.M. Pop 692.1001 2689
23280 7590 02/14/2014
Davidson, Davidson & Kappel, LLC
485 7th Avenue
14th Floor
New York, NY 10018
EXAMINER
GREGORY, BERNARR E
ART UNIT PAPER NUMBER
3646
MAIL DATE DELIVERY MODE
02/14/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MIHAI G.M. POP
and BRIAN GLENN LOCKAMON
____________________

Appeal 2012-003039
Application 11/713,144
Technology Center 3600
____________________

Before JOSEPH A. FISCHETTI, HYUN J. JUNG, and
THOMAS F. SMEGAL, Administrative Patent Judges.

JUNG, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-003039
Application 11/713,144
2
STATEMENT OF THE CASE
Mihai G. M. Pop and Brian Glenn Lockamon (Appellants) appeal
under 35 U.S.C. § 134 from a rejection of claims 9-16, 19, 25-31, 38, 45,
and 46. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

CLAIMED SUBJECT MATTER
The claims are related to emergency systems of nuclear power plants.
Spec., para. [0001]. Claims 9, 19, and 25 are independent. Claim 9,
reproduced below, is illustrative of the claimed subject matter:
9. A nuclear power plant comprising:
a reactor;
a reactor coolant system;
a generator powered by the reactor coolant system;
an emergency core cooling system, the emergency core
cooling system including a water source, a pump having a
pump inlet receiving water from the water source and a pump
outlet providing the water to the reactor coolant system, and a
nanoparticle supply containing nanoparticles, the nanoparticle
supply having a supply outlet between the pump and the water
source, the nanoparticles entering the emergency core cooling
system at the supply outlet when released from the nanoparticle
supply.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Johnson
Gerlowski
Kim
Puthawala
US 4,587,080
US 4,694,693
US 6,724,854 B1
US 6,928,134 B1
May 6, 1986
Sep. 22, 1987
Apr. 20, 2004
Aug. 9, 2005
Appeal 2012-003039
Application 11/713,144
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Ryan Hannink et al., “Enhancement of the In-Vessel Retention
Capabilities of Advanced Light Water Reactors through the Use of
Nanofluids,” Proceedings of ICAPP 2007 (May 13-18, 2007) (hereafter
“Hannink”).
Jacopo Buongiorno et al., “Use of Nanofluids for Enhanced
Economics and Safety of Nuclear Reactors,” COE-INES International
Symposium (Nov. 26-30, 2006) (hereafter “Buongiorno”).

REJECTIONS
The Appellants seek our review of the following rejections.
Claims 9-16 and 28-30 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Johnson and Hannink.
Claim 19 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Johnson, Hannink, and Puthawala.
Claims 25 and 26 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Johnson, Hannink, and Gerlowski.
Claim 27 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Johnson, Hannink, Gerlowski, and Kim.
Claims 31 and 45 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Johnson, Hannink, and Buongiorno.
Claims 38 and 46 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Johnson, Hannink, Gerlowski, and Buongiorno.

Appeal 2012-003039
Application 11/713,144
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ANALYSIS
Claims 9-16 and 28-30
Unpatentability over Johnson and Hannink
The Examiner finds that Johnson substantially teaches the subject
matter of independent claim 9 but fails to teach a nanoparticle supply. Ans.
5-6. The Examiner finds that Johnson teaches, inter alia, “an emergency
core cooling system . . . including a water source 96 [and] a pump 74.” Id.
at 5. The Examiner finds that Hannink teaches a nanoparticle supply. Id. at
6 (citing Hannink, p. 1, col. 1, ¶ 4, l. 2). The Examiner concludes that it
would have been obvious
to connect a nanoparticle supply outlet to the system between
the pump and the water source (e.g. replace the fluid in the
additive tank of Johnson with the nanoparticle fluid taught in
Hannink et al.) with the motivation of adding the nanoparticles
to the water (from the storage tank) before it is pumped into the
reactor coolant system.
Id.
The Appellants argue that the Examiner’s rationale “is to add
nanoparticle[s] to the reactor water (in the piping) before it is pumped into
the reactor vessel” but “Hannink sole[l]y teaches injecting nanofluids into a
flooded reactor cavity to cool the reactor vessel outer surface during a severe
accident” and “Johnson teaches that . . . low head pump 74 draws water from
refueling water storage tank 96 and provides it to headers 104 located at the
top of the containment building 34.” Reply Br. 2 (emphasis omitted, citing
Ans. 17, Hannink, ¶¶ 3, 4, and 7, and Johnson, col. 9, ll. 6-12). The
Appellants thus argue that “the nanofluids in Hannink and the additives in
Johnson are used for two very distinct purposes . . . , neither of which would
have motivated one of skill in the art ‘to add nanoparticle[s] to the reactor
water (in the piping) before it is pumped into the reactor vessel’” because
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Application 11/713,144
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“[n]either reference teaches pumping nanofluids, ‘into the reactor vessel.’”
Id. at 3.
The Appellants’ argument is persuasive. The Examiner determines
that it would have been obvious “to connect a nanoparticle supply outlet . . .
with the motivation of adding the nanoparticles to the water (from the
storage tank) before it is pumped into the reactor coolant system.” Ans. 6;
see also id. at 17 (stating “the motivation for replacing the fluid additives in
the spray additive tank of Johnson with a nanoparticle solution is to add
nanoparticles to the reactor water (in the piping) before it is pumped into the
reactor vessel”). Hannink discloses “the use of nanofluids to enhance the
heat removal [during an In-Vessel Retention scenario]” “in which the core
melts and relocates to the bottom of the reactor vessel” and “consists of
flooding the reactor cavity and removing the residual heat from the core
through the reactor vessel lower head.” Hannink, I. Introduction, ¶¶ 1-2.
Thus, Hannink discloses that nanoparticles are used to remove heat from a
melted core through the walls of a reactor vessel. Johnson discloses that
when pressure in containment building 34 exceeds a
predetermined level, either because of a loss of coolant or
because of a steam break, low head pump 74 is aligned . . . to
draw water from a refueling water storage tank 96 . . . and
provide it through line 100 to headers 104 located at the top of
containment building 34.
Johnson, col. 9, ll. 6-12. Johnson also states that “[a]lternatively, a spray
header can be provided adjacent the top of loop compartment 38 to
selectively spray that compartment instead of the entire containment
building 34.” Id. at ll. 12-16. Thus, Johnson discloses pumping water to
spray either containment building 34 or compartment 38. Therefore, the
Examiner’s articulated reasoning lacks rational underpinning because neither
Hannink nor Johnson discloses by a preponderance of the evidence that
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water from refueling water storage tank 96 is pumped into the reactor
coolant system or into the reactor vessel.
Accordingly, we cannot sustain the Examiner’s rejection of claims 9-
16 and 28-30 under 35 U.S.C. § 103(a) as unpatentable over Johnson and
Hannink.
Claim 19
Unpatentability over Johnson, Hannink, and Puthawala
Independent claim 19 recites a nuclear power plant comprising, inter
alia, “a nanoparticle supply supplying nanoparticles to the emergency core
cooling system, the nanoparticle supply including a valve, a motor driving
the valve and a controller controlling the motor-driven valve, the controller
actuating the motor-driven valve to maintain a nanoparticle concentration
throughout a course of a severe accident.” App. Br., Claims App’x.
The Examiner finds that Johnson substantially teaches the subject
matter of claim 19 but “fails to teach a nanoparticle supply supplying
nanoparticles to the emergency core cooling system, the nanoparticle supply
including a motor-driven valve and a controller controlling the motor valve.”
Ans. 9. The Examiner finds that “Hannink . . . teaches a nanoparticle supply
supplying nanoparticles to the emergency core cooling system through a
manual valve.” Id. at 9-10. The Examiner further finds that “Johnson and
Hannink . . . fail to teach a valve, a motor driving the valve, and a controller
controlling the motor valve, the controller actuating the motor-driven valve
to maintain a nanoparticle concentration through a course of a severe
accident.” Id. at 10. The Examiner finds that “Puthawala . . . teaches a
valve 42, a motor driving the valve, and a controller 52 controlling the motor
valve 42, the controller 52 actuating the motor-driven valve 42 to maintain a
nanoparticle concentration through a course of a severe accident.” Id. (citing
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Puthawala, col. 4, ll. 25-32 and fig. 1). The Examiner states that a
“motivation for including a motor-driven valve and a controller in a
nanoparticle supply is to provide a valve that can be operated without
manual actuation and control” and concludes that “it would have been
obvious . . . to include a motor-driven valve and a controller in the
nanoparticle supply as described above.” Id.
The Appellants argue that “Puthawala fails to teach . . . ‘the controller
actuating the motor-driven valve to maintain a nanoparticle concentration
throughout a course of a severe accident’” because the cited portion of
Puthawala does not teach “maintaining a nanoparticle concentration
throughout a course of a severe accident.” App. Br. 10. The Examiner
responds that “the limitation . . . is a recitation of intended use” and that the
“motor-driven valve, disclosed in Puthawala, is capable of maintaining a
nanoparticle concentration throughout a course of a severe accident.” Ans.
20, 21. The Appellants reply that “there is absolutely no indication in any of
the references that controller 52 would be inherently capable of maintaining
‘a nanoparticle concentration throughout a course of a severe accident’”
because the “additives [of Johnson] are merely released constantly . . . and
not controlled to maintain any concentration . . . and the teaching of
Puthawala of merely including control valve 42 in a hydrogen admission line
36 would not have motivated one of skill in the art to have modified spray
additive tank 106 in such a manner.” Reply Br. 4-5.
The Appellants’ argument is not persuasive. The characteristic
alleged to be inherent in the prior art must be necessarily present. However,
where the alleged inherent characteristic is a function or intended use of the
device, the Appellants, and not the Examiner, are in the best position to
establish the existence or non-existence of this characteristic. Thus, the
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Examiner may shift the burden to the Appellants to prove that the prior art
does not possess the characteristic alleged by the Examiner to be inherent.
Nevertheless, the Examiner must provide sufficient evidence or scientific
reasoning to establish the reasonableness of the Examiner’s belief that the
functional limitation is an inherent characteristic of the prior art.
The Examiner reasonably found that the structural similarities
between valve 42 of Puthawala and the claimed invention provided a
sufficient basis to conclude that Puthawala’s motor-driven valve 42 and
associated controller could perform all the recited functions and uses.
Moreover, Hannink teaches the use of motor-operated valves. See Hannink,
fig. 5. The Appellants’ argument that the additives of Johnson are released
constantly and that Puthawala teaches including valve 42 in a hydrogen
admission line does not show why valve 42 and its controller are not capable
of maintaining a nanoparticle concentration throughout a course of a severe
accident, as required by claim 19.
The Appellants further reply that
the nanofluids in Hannink and the additives in Johnson are used
for two very distinct purposes (cooling the outer surface of a
reactor vessel during a severe accident versus regulating
pressure in a containment building), neither of which would
have motivated one of skill in the art to modify Johnson to
include “a nanoparticle supply supplying nanoparticle to the
emergency core cooling system” as claimed
and “[n]either reference teaches supplying nanoparticle, ‘to the emergency
core cooling system’ as claimed” because “[t]he nanofluids in Hannink
never pass through the reactor vessel core or cool the reactor vessel core,
they merely pass over the outer surface of the reactor vessel.” Reply Br. 4.
The Appellants’ arguments are not persuasive. The Appellants cite no
definition for “emergency core cooling,” nor can we find one, in their
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Specification that would preclude the emergency core cooling disclosed by
Johnson and Hannink. Also, the Appellants’ Figure 1 shows emergency
core cooling 50 that includes nanoparticle supply 220 that supplies a pump
110 which pumps “To Containment Spray System.” See also Spec., para.
[0036].
The Appellants also argue that “there is no reason or motivation to
combine the teachings of Johnson and Hannink with Puthawala.” App. Br.
10. In particular, the Appellants argue that “one of skill in the art would not
look to combine both Johnson and Hannink which are related to protective
systems of the nuclear reactor during severe accidents and Puthawala which
is only concerned with admitting hydrogen into the primary coolant.” Id.
The Examiner responds that “Johnson, Hannink, and Puthawala are in the
field of applicant’s endeavor and are reasonably pertinent to the particular
problem with which Applicant was concerned.” Ans. 21.
The Appellants’ arguments are not persuasive. Although the
Appellants argue that Puthawala is not related to Johnson and Hannink, the
Appellants do not explain why Puthawala is not reasonably pertinent to the
problem with which the inventor was concerned or because of the subject
matter with which it deals, would not have logically commended itself to an
inventor’s attention in considering the problem. See In re Oetiker, 977 F.2d
1443, 1447 (Fed. Cir. 1992) and In re Clay, 966 F.2d 656, 659 (Fed. Cir.
1992).
The Appellants also argue that “the additives in spray additive tank
106 are sprayed into the containment building 34” and thus, “the Examiner’s
reasoning for modifying Johnson in view of Hannink to include the
‘nanoparticle supply’ of claim 19 is unsupported by the references and is
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Application 11/713,144
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clearly an improper hindsight reconstruction done solely to meet the
language of claim 19.” Reply Br. 4.
The Appellants’ arguments are not persuasive. Hannink articulates a
reason and a suggestion to make the proposed combination, and thus, there
is no basis to conclude that the Examiner improperly relied upon hindsight.
Hannink teaches “the use of nanofluids to enhance the heat removal in [an
In-Vessel Retention strategy]” “in which the core melts and relocates to the
bottom of the reactor vessel” and “consists of flooding the reactor cavity and
removing the residual heat from the core through the reactor vessel lower
head.” Hannink, I. Introduction, ¶¶ 1-2. Thus, Hannink discloses use of
nanoparticles for emergency core cooling. Hannink also discloses a design
for a nanofluid injection system. See id. at “IV. CONCEPTUAL DESIGN
OF THE NANOFLUID INJECTION SYSTEM.” Therefore, Hannink
provides a reason and motivation to make the Examiner’s proposed
combination.
Accordingly, we sustain the Examiner’s rejection of claim 19 under
35 U.S.C. § 103(a) as unpatentable over Johnson, Hannink, and Puthawala.
Claims 25 and 26
Unpatentability over Johnson, Hannink, and Gerlowski
Independent claim 25 recites a nuclear power plant that comprises,
inter alia,
an emergency core cooling system having: . . . a first
nanoparticle supply having a supply outlet exiting into the
accumulator; . . . a second nanoparticle supply having a supply
outlet between the high pressure pump and the first water
source; and . . . a third nanoparticle supply having a supply
outlet between the low pressure pump and the second water
source.
App. Br., Claims App’x.
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11
The Examiner finds that Johnson substantially teaches the subject
matter of independent claim 25 but “fails to teach a first nanoparticle supply
. . . , a second nanoparticle supply . . . , and a third nanoparticle supply . . . .”
Ans. 11. The Examiner finds that “Hannink . . . teaches the injection of
nanofluids from multiple small tanks . . . but fails to teach the exact injection
locations.” Id. (citing Hannink, col. 2, para. 3, ll. 5-7). The Examiner
further finds “Gerlowski teaches a nitrogen supply, which is capable of
containing a nanoparticle fluid, having a supply outlet exiting into an
accumulator 105” and “Hannink . . . teaches that nanoparticle tanks can be
attached to the accumulators.” Id. at 11-12 (citing Gerlowski, col. 5, ll. 59-
62 and fig. 2 and Hannink, col. 2, para. 5, ll. 10-11). The Examiner
concludes that it would have been obvious “to connect a first nanoparticle
supply outlet to an accumulator in order to inject nanoparticles into the
system while overpressurizing the accumulators to drive the injection.” Id.
at 12.
The Examiner finds that “Gerlowski also teaches a nitrogen supply
and boron supply, which are each capable of containing nanoparticle fluid,
having a supply outlet between a high pressure pump 115 and a first water
source (water from hot leg 15; figure 1, column 1, lines 63-65)” and
concludes that
[i]t would have been obvious to one of ordinary skill in the art
to connect the second nanoparticle supply outlet to the system
between the high pressure pump and the first water source with
the motivation of adding the nanoparticles to the water before it
is pumped into the reactor coolant system.
Ans. 12.
The Examiner further finds that “Johnson teaches . . . an additive tank
106, which is capable of containing a nanoparticle fluid, having a supply
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outlet between the low pressure pump 74 and the refueling water storage
tank 96 through valves 108 and 110 (figure 5; column 9, lines 18-21)” and
concludes that “[i]t would have been obvious to one of ordinary skill in the
art to connect the third nanoparticle supply outlet to the system between the
pump and the refueling water storage tank with the motivation of adding the
nanoparticles to the water before it is pumped into the reactor coolant
system.” Ans. 12-13.
The Appellants argue that “the exact location of the three nanoparticle
supplies is based on hindsight and the teachings of the present invention.”
App. Br. 11. The Appellants also argue that “[t]he Examiner’s reasoning for
such a modification is completely conclusory and amounts to an
impermissible hindsight reconstruction.” Id.
The Appellants’ arguments are persuasive. Hannink discloses that its
nanofluid storage tanks discharge either “into the [In-Containment Refueling
Water Storage Tank (IRWST)],” “into the recirculation lines of the
IRWST,” or “directly into the reactor cavity.” Hannink, IV.D. Design
Details. Hannink also discloses that the “tanks [with nanoparticles] would
need to be located above the reactor cavity to ensure that the nanofluid could
be passively injected by gravity.” Id. at IV.C. Concentrated Nanofluid
Storage Tank Specifications. Thus, Hannink relies on gravity and
discourages relying on pumps to supply the nanoparticles because pumps
could fail to start during a reactor accident. Furthermore, none of the cited
references teach storing nanoparticles into a nitrogen or boron supply, such
as Gerlowski’s. Thus, none of the references teaches putting nanoparticle
supplies with an outlet exiting into an accumulator or between a pump and a
water source, as required by claim 25.
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Accordingly, we do not sustain the Examiner’s rejection of claims 25
and 26 under 35 U.S.C. § 103(a) as unpatentable over Johnson, Hannink,
and Gerlowski.
Claim 27
Unpatentability over Johnson, Hannink, Gerlowski, and Kim
Claim 27 depends indirectly from claim 25. App. Br., Claims App’x.
The Examiner does not cite Kim for any teaching that cures the deficiency
discussed supra regarding the proposed combination of Johnson, Hannink,
and Gerlowski. See Ans. 14. Therefore, we do not sustain the Examiner’s
rejection of claim 27 under 35 U.S.C. § 103(a) as unpatentable over
Johnson, Hannink, Gerlowski, and Kim.
Claims 31 and 45
Unpatentability over Johnson, Hannink, and Buongiorno
Claims 31 and 45 depend from claim 9. App. Br., Claims App’x. The
Examiner does not cite Buongiorno for any teaching that cures the
deficiency discussed supra regarding the proposed combination of Johnson
and Hannink. See Ans. 14-15. Therefore, we do not sustain the Examiner’s
rejection of claims 31 and 45 under 35 U.S.C. § 103(a) as unpatentable over
Johnson, Hannink, and Buongiorno.
Claims 38 and 46
Unpatentability over Johnson, Hannink, Gerlowski, and Buongiorno
Claims 38 and 46 depend from claim 25. App. Br., Claims App’x.
The Examiner does not cite Buongiorno for any teaching that cures the
deficiency discussed supra regarding the proposed combination of Johnson
and Hannink. See Ans. 16. Therefore, we do not sustain the Examiner’s
rejection of claims 38 and 46 under 35 U.S.C. § 103(a) as unpatentable over
Johnson, Hannink, Gerlowski, and Buongiorno.
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DECISION
The Examiner’s rejection of claims 9-16 and 28-30 under 35 U.S.C.
§ 103(a) as unpatentable over Johnson and Hannink is reversed.
The Examiner’s rejection of claim 19 under 35 U.S.C. § 103(a) as
unpatentable over Johnson, Hannink, and Puthawala is affirmed.
The Examiner’s rejection of claims 25 and 26 under 35 U.S.C.
§ 103(a) as unpatentable over Johnson, Hannink, and Gerlowski is reversed.
The Examiner’s rejection of claim 27 under 35 U.S.C. § 103(a) as
unpatentable over Johnson, Hannink, Gerlowski, and Kim is reversed.
The Examiner’s rejection of claims 31 and 45 under 35 U.S.C.
§ 103(a) as unpatentable over Johnson, Hannink, and Buongiorno is
reversed.
The Examiner’s rejection of claims 38 and 46 under 35 U.S.C.
§ 103(a) as unpatentable over Johnson, Hannink, Gerlowski, and
Buongiorno 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)(1)(iv) (2011).

AFFIRMED-IN-PART

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