Ex Parte Stabel et al

Patent Trial and Appeal Board

Feb 29, 2016

12020918 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/020,918 01/28/2008
24131 7590 03/02/2016
LERNER GREENBERG STEMER LLP
PO BOX 2480
HOLLYWOOD, FL 33022-2480
FIRST NAMED INVENTOR
Jurgen Stabel
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.
MOH-P040171 2902
EXAMINER
MCGUE, FRANK J
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
03/02/2016 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):
boxoa@patentusa.com
docket@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JURGEN STABEL, HANS-JOACHIM LIPPERT,
MINGMIN REN, and BERND DRESSEL
Appeal2013-007588
Application 12/020,918
Technology Center 3600
Before MICHAEL L. HOELTER, JILL D. HILL, and LEE L. STEPINA,
Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Jurgen Stabel et al. (Appellants) appeal under 35 U.S.C. § 134 from the
Examiner's final decision rejecting claims 1, 2, and 4. We have jurisdiction under
35 U.S.C. § 6(b). Oral arguments for this case were heard on February 23, 2016.
We REVERSE.
CLAIMED SUBJECT MATTER
Sole independent claim 1, reproduced below, illustrates the claimed subject
matter with the key dispute limitation italicized.
1. A fuel assembly for a pressurized water reactor, the fuel
assembly comprising:
Appeal2013-007588
Application 12/020,918
upper and lower adjoining regions as a whole extending over
the entire fuel assembly;
a plurality of mutually axially separated spacers disposed in
said upper region and a plurality of mutually axially separated spacers
disposed in said lower region;
a multiplicity of fuel rods extended in a longitudinal direction
and guided in said spacers; and
each of said spacers of said upper region having a lower flow
resistance in a transverse direction perpendicular to said longitudinal
direction than each of said spacers of said lower region.
Appeal Br., Claims App.
REJECTIONS
I. Claims 1and2 stand rejected under 35 U.S.C. § 102(b) as anticipated
by Thomazet (US 4,804,516, iss. Feb. 14, 1989). Final Act. 2.
II. Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Thomazet and Nylund (US 5,949,839, iss. Sep. 7, 1999). Final Act. 3.
OPINION
Rejection I -Anticipation
Regarding independent claim 1, the Examiner finds that Figure 2 of
Thomazet discloses a fuel assembly 2 having an upper region including spacers
10-16, and a lower region including spacers 6-9. Final Act. 2. The Examiner
finds that Thomazet also discloses that "each of said spacers 10-16 of said upper
region ha[ s] a lower flow resistance in a transverse direction perpendicular to said
longitudinal direction than each of said spacers 6-9 of said lower region." Id. The
Examiner explains that Thomazet's Figure 2 must be evaluated for what it
reasonably discloses to one skilled in the art, reasoning that the "structural heights
of each spacer 6-15 is the same," and that the openings between the fins of spacers
10-15 are similar to the openings of Appellants' invention, such that each of
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Appeal2013-007588
Application 12/020,918
spacers 10-15 will "result in lower flow resistance" due to less material present to
obstruct transverse flow. Final Act. 5.
Appellants argue that the relative sizes of the spacers in Figure 2 of
Thomazet cannot properly be relied on by the Examiner to form the basis for the
rejection, particularly due to the visibly "imprecise nature of the illustration."
Appeal Br. 5.
Drawings can anticipate claims if they clearly show the structure which is
claimed (see In re Mraz, 455 F.2d 1069, (CCPA 1972)); however, when the
reference does not disclose that the drawings are to scale and is silent as to
dimensions, arguments based on measurement of the drawing features are of little
value (see Hockerson-Halberstadt, Inc. v. Avia Group Int'!, 222 F.3d 951, 956
(Fed. Cir. 2000). Here, because the drawings do not clearly show the claimed
structure, and Thomazet is silent regarding the scale of the drawings and the
relative sizes of the spacers, the Examiner's finding based thereon is necessarily
based on speculation and is not adequately supported by Thomazet's disclosure.
We therefore do not sustain Rejection I.
Rejection II
Claim 4 depends from claim 1. The Examiner does not find that Nylund
cures the deficiencies of Thomazet by disclosing upper region spacers having a
lower flow resistance than lower region spacers. \Ve therefore do not sustain
Rejection II for the reasons set forth above regarding R~jection I.
DECISION
We REVERSE the rejection of claims 1and2 under 35 U.S.C. § 102(b) as
anticipated by Thomazet.
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Appeal2013-007588
Application 12/020,918
We REVERSE the rejection of claim 4 under 35 U.S.C. § 103(a) as
unpatentable over Thomazet and Nylund.
REVERSED
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