Ex Parte Pop et al

Patent Trials and Appeals Board

Jun 16, 2016

12841848 - (D) (P.T.A.B. Jun. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/841,848 07/22/2010
23280 7590 06/20/2016
Davidson, Davidson & Kappel, LLC
589 8th A venue
16th Floor
New York, NY 10018
FIRST NAMED INVENTOR
Mihai G. M. Pop
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.
693.1028 2879
EXAMINER
MCGUE, FRANK J
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
06/20/2016 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):
ddk@ddkpatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MIHAI G. M. POP, ANTHONY A. PUGH,
LAURENCE S. LAMANNA, and JOHN T. WILLSE
Appeal2014-002428
Application 12/841, 848
Technology Center 3600
Before LINDA E. HORNER, CHARLES N. GREENHUT, and
MICHELLE R. OSINSKI, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Mihai G. M. Pop et al. (Appellants) 1 appeal under 35 U.S.C. § 134
from the Examiner's final decision rejecting claims 1--4 and 6-19. Claim 5
is withdrawn. Appeal Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 According to Appellants, the real party in interest is AREVA NP INC.
Appeal Br. 2.
Appeal2014-002428
Application 12/841,848
THE CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below and is
representative of the claimed subject matter on appeal.
1. A method to perform an analysis of two types of CRUD on a
nuclear fuel rod, comprising:
providing a nuclear fuel rod with a first and second layer
of CRUD on an exterior of the fuel rod, the second layer being
below the first layer;
brushing the first layer of CRUD from the fuel rod with a
CRUD tool on a selected area; wherein the tool has a brushing
device, a force applied to the brushing device on the fuel rod to
remove the first layer of CRUD, the force being sufficient
enough to perform such removal;
collecting the first layer of CRUD from the brushing
device;
scraping the second layer of CRUD from the fuel rod in
the selected area with the tool, wherein the tool has a scraping
device and a second force is applied to the tool for scraping;
collecting the second layer of CRUD from the scraping
device; and
analyzing the first layer and second layer of CRUD
separately
microscope.
with a
EVIDENCE
scanmng electron
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Rands
Arya
Cooper
Muth
Bowen
Pop
us 3,871,139
us 4,063,962
us 4,683,109
us 4,925,621
US 2002/0015464 Al
US 2008/0277581 Al
2
Mar. 18, 1975
Dec. 20, 1977
July 28, 1987
May 15, 1990
Feb. 7,2002
Nov. 13, 2008
Appeal2014-002428
Application 12/841,848
W. M. M. Huijbregts & P. J. C. Letschert, Deposition of CRUD
in BWR water on various steels exposed in the Dodewaard
nuclear power plant, Kema Scientific & Technical Reports 4
(2): 15-25, Paper 33 (1987) ("Huijbregts").
Jiaxin Chen, On the Interaction between Fuel Crud and Water
Chemistry in Nuclear Power Plants, Part 1: A Literature
Survey, SKI Project Number 97252 (Jan. 2000) ("Chen").
REJECTIONS
I. Claims 1--4, 6, 14, 16, and 17 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Muth, Cooper, and Huijbregts. Final Act.
2--4.
II. Claims 7-9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Muth, Cooper, Huijbregts, and Rands. Id. at 4--5.
III. Claims 10 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Muth, Cooper, Huijbregts, and Pop. Id. at 5.
IV. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Muth, Cooper, Huijbregts, and Bowen. Id. at 5.
V. Claims 12 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Muth, Cooper, Huijbregts, and Arya. Id. at 6.
VI. Claims 18 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Muth, Cooper, Huijbregts, and Chen. Id.
OPINION
Rejection I
The Examiner finds that Huijbregts teaches a nuclear fuel rod with
first and second layers of CRUD in which a second layer is below the first
layer. Final Act. 2 (citing Huijbregts, 2 i-f 4). The Examiner finds that Muth
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Appeal2014-002428
Application 12/841,848
and Cooper each teach removing a first layer of CRUD from a fuel rod using
a CRUD tool on a selected area. Id. at 2-3 (citing Muth, 3:7-15; Cooper,
12:45-56). More particularly, the Examiner finds that Muth teaches cutter 4
for removing the first layer of CRUD and Cooper teaches pick tool 200,
water lance tool 210, brush tool 220, and tweezers tool 230 for removing the
first layer of CRUD. Id. at 3. The Examiner further finds that a force
applied to brushing device 220 on the fuel rod is sufficient to remove a first
layer of CRUD. Id. (citing Cooper, 14:63-15:15, claims 5-6).
The Examiner further finds that Muth and Cooper each teach
removing a second layer of CRUD from a fuel rod using a CRUD tool. Id.
More particularly, the Examiner finds that Muth teaches cutters 4, 5 for
removing the second layer of CRUD and Cooper teaches tools 200-230 for
removing the second layer of CRUD. Id. (citing Muth, 2:63---64; Cooper,
14:63-15:15). The Examiner further finds that Cooper teaches collection of
the first and second layers of CRUD (id. (citing Cooper, 14:28-37)) and that
Muth teaches the first and second layers are analyzed (id. (citing Muth,
1 :38--42)).
The Examiner concludes that "[i]t would have been obvious to modify
Muth [] by providing the tools of Cooper [] in order to obtain samples of
CRUD using one device with two differing tools for use as needed. Id. The
Examiner points to Muth' s teaching of removal of two layers, namely, "a
surface oxide layer followed by ... a sample for analysis" (Ans. 7), as well
as Cooper's teaching of using different tools for different operations (id. at
7-8 (quoting Cooper, 16:8-11 ("[i]t will also be appreciated that, if it is
necessary to change the tools ... , such as to provide a different set of tools
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Appeal2014-002428
Application 12/841,848
for performing a different type of operation ... , this can be effected by
removal of only the tool manipulation assembly."))).
Appellants argue that Cooper is directed to a system for removing
debris that "has been found to include metal chips, pieces of wire, and other
unidentified metallic fragments" that may become lodged in the nuclear fuel
assembly. Appeal Br. 5 (citing Muth, 1 :25-29). Appellants explain that
pick tool 200 and water lance tool 210 are useful to dislodge debris particles,
including those wrapped around a fuel rod or grid elements, and that the
dislodged debris particles may then be brushed off using a brush tool. Id.
(citing Cooper, Abstr., 14:21-32). Appellants explain that, on the other
hand, CRUD is "well known to one of skill in the art" and "describes
metallic material that dissolves in the primary coolant circuit and deposits on
nuclear fuel rod surfaces in the circuit." Id. at 7 (citing Spec. i-fi-13-5).
Appellants argue that there is insufficient evidentiary support and no clearly
articulated reason having rational underpinning as to why it would have been
obvious to combine brush tool 220 of Cooper with Muth's device and then
to have removed a first layer of CRUD with the brush tool and a second
layer with one of Muth's cutters 4, 5. Id. at 8. Appellants argue that the
Examiner's conclusion of obviousness merely suggests the "result" of the
combination, as opposed to providing a reason having rational
underpinnings as to why one of skill in the art would have made the
combination. Id. at 10.
We agree with Appellants. Cooper's brush tool may have bristles
having a length that "can simultaneously brush the lower ends of the fuel
rods 31 and the upper surface 39 of the fuel assembly bottom nozzle 38"
(Cooper, 12: 18-22 ), but there is no further specification as to the effect of
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Application 12/841,848
brushing on the fuel rods 31 other than brushing away dislodged debris as
described above. For example, Cooper does not explain whether its brush
tool would provide sufficient force to remove a layer of CRUD material, as
opposed to mere dislodged particles. Nor does the Examiner explain how
the general disclosure of debris removal with a brush tool is applicable to
obtaining samples of CRUD. Cooper's disclosure is not explicitly related to
"obtain[ing] samples of CRUD", such that the Examiner has not adequately
explained how a person of ordinary skill in the art would recognize that
Cooper's disclosure is applicable to such use and that Cooper's brush tool
would have been a different tool to "use as needed" (Final Act. 3) in
connection with CRUD removal.
Rather than providing articulated reasoning with a rational
underpinning as to why one of ordinary skill in the art would have modified
Muth with the brush tool of Cooper for removal and collection of CRUD on
a nuclear fuel rod, the Examiner has merely demonstrated that different tools
were independently known in the nuclear reactor art for different purposes
such as debris removal or securing a pressure tube sample. See KSR Int 'l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) ("a patent composed of
several elements is not proved obvious merely by demonstrating that each of
its elements was, independently, known in the prior art"); see also Unigene
Labs., Inc. v. Apotex, Inc., 655 F.3d 1352, 1360 (Fed. Cir. 2011)
("Obviousness requires more than a mere showing that the prior art includes
separate references covering each separate limitation in a claim under
examination. Rather, obviousness requires the additional showing that a
person of ordinary skill at the time of the invention would have selected and
combined those prior art elements .... ") (internal citation omitted).
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Application 12/841,848
Moreover, Appellants argue that none of the cited references teach or
suggest analyzing the first and second layers of CRUD separately with a
scanning electron microscope. Appeal Br. 9. Appellants continue that
"[s]eparately collecting an oxidized surface and a sample (which are clearly
not two deposit layers on a surface) would not have provided one of skill in
the art with any reason to have collected and analyzed two distinct layers of
CRUD separately." Id. at 9-10. We agree with Appellants. The identified
sections of Muth teach only analyzing one of the layers (i.e., the deuterium-
rich sample of the pressure tube), not the surface oxide layer. Further, the
Examiner provides no explanation as to why it would have been obvious to
one of skill in the art to have analyzed the surface oxide layer.
For the foregoing reasons, we do not sustain the rejection of
independent claim 1, and its dependent claims 2--4 and 6, 14, 16, and 17, as
unpatentable over Muth, Cooper, and Huijbregts.
Rejections II-VI
The Examiner rejects claims 7-9 as unpatentable over Muth, Cooper,
Huijbregts, and Rands; claims 10 and 15 as unpatentable over Muth, Cooper,
Huijbregts, and Pop, claim 11 as unpatentable over Muth, Cooper,
Huijbregts, and Bowen; claims 12 and 13 as unpatentable over Muth,
Cooper, Huijbregts, and Arya; and claims 18 and 19 as unpatentable over
Muth, Cooper, Huijbregts, and Chen. Final Act. 4---6. Claims 7-13, 15, 18,
and 19 depend from independent claim 1.
The rejection of these claims relies on the Examiner's erroneous
conclusion that the combination of Muth, Cooper, and Huijbregts renders
obvious a method to perform an analysis of two types of CRUD on a nuclear
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Appeal2014-002428
Application 12/841,848
fuel rod, comprising brushing the first layer of CRUD from the fuel rod with
a tool that has a brushing device, wherein the force applied to the brushing
device on the fuel rod is sufficient to perform the removal of the first layer
of CRUD, as well as analyzing first and second layers of CRUD separately
with a scanning electron microscope. Accordingly, for the reasons discussed
supra, we do not sustain the Examiner's rejection, under 35 U.S.C. § 103(a),
of: claims 7-9 as being unpatentable over Muth, Cooper, Huijbregts, and
Rands; claims 10 and 15 as unpatentable over Muth, Cooper, Huijbregts, and
Pop, claim 11 as unpatentable over Muth, Cooper, Huijbregts, and Bowen;
claims 12 and 13 as unpatentable over Muth, Cooper, Huijbregts, and Arya;
and claims 18 and 19 as unpatentable over Muth, Cooper, Huijbregts, and
Chen.
DECISION
The Examiner's decision to reject claims 1--4 and 6-19 is
REVERSED.
REVERSED
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