Ex Parte Wazybok et al

Patent Trial and Appeal Board

Mar 25, 2013

11940434 (P.T.A.B. Mar. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID FRANCIS WAZYBOK, DAVID GREY SMITH,
ANDREW LANGSTON, WILLIAM WILLIAMS,
JAMES MICHAEL DOWNS and CHRISTOPHER R. JONES
____________

Appeal 2011-001052
Application 11/940,434
Technology Center 3600
____________

Before STEVEN D.A. McCARTHY, EDWARD A. BROWN
and LYNNE H. BROWNE, Administrative Patent Judges.

BROWNE, Administrative Patent Judge

DECISION ON APPEAL

Appeal 2011-001052
Application 11/940,434

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STATEMENT OF THE CASE

David Francis Wazybok et al. (Appellants) appeal under 35 U.S.C.
§ 134 from the Examiner’s decision finally rejecting claims 2-17. Claim 1 is
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We Affirm-in-Part.

THE INVENTION
Claim 6, reproduced below, is illustrative of the subject matter on
appeal.
6. A shipping container for shipping channeled
fuel bundles, the shipping container comprising:
an outer container;
an inner container sized to fit within the
outer container; and
shock absorbing material disposed between
the outer and inner containers, wherein the inner
container is shaped to house at least one fuel
bundle disposed in a channel and including a
channel fastener and an array of rods supported by
spacer grids between an upper tie plate and a lower
tie plate, and
wherein the inner container includes:
a lower tie plate restraint device
shaped to receive the lower tie plate and a lower
portion of the channel and always engaging all
sides of the lower tie plate and the lower portion of
the channel when received by the lower tie plate
restraint device, the lower tie plate restraint device
being lockable into the inner container in only one
correct orientation, and
an upper tie plate restraint device
shaped to receive the upper tie plate and an upper
portion of the channel, the upper tie plate restraint
device being lockable into the inner container.
App. Br. 18-19 (emphasis added).
Appeal 2011-001052
Application 11/940,434

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PRIOR ART
Papai US 4,780,268 Oct. 25, 1988
Sappey US 5,263,064 Nov. 16, 1993
Yoshizawa US 6,108,392 Aug. 22, 2000
Hur US 6,401,887 B1 Jun. 11, 2002
Peters US 2002/0067791 A1 Jun. 6, 2002

THE REJECTIONS
1. Claims 2-6, 8, 9, 11, 13, 14 and 161 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Sappey and Yoshizawa.
2. Claim 12 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Sappey, Yoshizawa and Papai.
3. Claim 15 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Sappey, Yoshizawa and Hur.
4. Claims 7, 10 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Sappey, Yoshizawa and Peters.

OPINION
Claims 2-7 and 11-15
Regarding claim 6, the Examiner finds that Sappey discloses each and
every element of claim 6 except for an inner container including a lower tie
plate restraint device and an upper tie plate restraint device including each
claimed limitation. Ans. 6. The Examiner further finds that

1 The statement of this rejection also includes claims 12 and 15 (Ans. 5;
App. Br. 13); however, claims 12 and 15 are not addressed in the
Examiner’s statement of the rejection and are rejected on other grounds.
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Application 11/940,434

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Yoshizawa et al. teaches an inner container 5B that
[includes a] lower tie plate restraint device
21A/18c/18a (figure 6) shaped to receive the lower
tie plate 103 and a lower portion of the channel
and always engaging all sides of the lower tie plate
103 and the lower portion [of] the channel when
received by the lower tie plate restraint device
21A/18c/18a (figures 4-6), the lower tie plate
restraint device 21A/18c/18a being lockable into
the inner container 5B in only one correct
orientation, and an upper tie plate restraint device
21/18c/18a (figure 5) shaped to receive the upper
tie plate 102 and an upper portion of the channel,
the upper tie plate restraint device 21/18c/18a
being lockable into the inner container 5B.

Id.
Appellants argue “at best, the fastening plates 21 in Yoshizawa
amount to a restraint device . . . Items l8a and l8c are merely protective
members . . . Thus, Yoshizawa similarly lacks the claimed structure always
engaging all sides of the lower tie plate.” App. Br. 15 (emphasis added).
The Examiner responds “restraint device sub-members 18a and 18c do
restrain the fuel assembly and keep it from shifting vertically with respect to
the lid of the container.” Ans. 16.
The Examiner does not explain how the restraint device sub-members
18a and 18c of Yoshizawa “always engag[e] all sides of the lower tie plate”
as required by claim 6. The Examiner cites figures 4-6 of Yoshizawa as
showing this feature (Ans. 6); however, these figures do not support the
Examiner’s findings. Figure 4 shows protective members 18a located on
two sides of the fuel assembly 101 and therefore on two sides of lower tie
plate (not labeled) and does not show protective member 18c, while Figures
Appeal 2011-001052
Application 11/940,434

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5 and 6 only show one protective member 18a on one side of the lower tie
plate 103 and one protective member 18c contacting the tip of the lower tie
plate.
For these reasons we do not sustain the Examiner’s rejection of claim
6 and claims 2-5, 11, 13 and 14 which depend therefrom. Claims 7, 12, and
15 depend from claim 6. The Examiner’s application of Peters for the
rejection of claim 7 (Ans. 13) does not cure the deficiency in the rejection of
claim 6. Accordingly, we do not sustain the Examiner’s rejection of claim 7.
The Examiner’s application of Papai for the rejection of claim 12 (Ans. 11-
12) does not cure the deficiency in the rejection of claim 6. Accordingly, we
do not sustain the Examiner’s rejection of claim 12. Lastly, the Examiner’s
application of Hur for the rejection of claim 15 (Ans. 12) does not cure the
deficiency in the rejection of claim 6. Accordingly, we do not sustain the
Examiner’s rejection of claim 15 which depends therefrom.
Claims 8 and 9
The Examiner finds that Sappey discloses each and every element of
independent claim 8 except a lower tie plate restraint device and an upper tie
plate restraint device including each claimed limitation. Ans. 8. The
Examiner further finds that

Yoshizawa et al. teaches an inner container 5B that
[includes a ] lower tie plate restraint device
21A/18c/18a (figure 6) shaped to receive the lower
tie plate 103 and a lower portion of the channel,
the lower tie plate restraint device 21A/18c/18a
being lockable into the inner container 5B, and an
upper tie plate restraint device 21/18c/18a (figure
5) shaped to receive the upper tie plate 102 and an
upper portion of the channel, the upper tie plate
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restraint device 21/18c/18a being lockable into the
inner container 5B in only one correct orientation.

Id.
Appellants argue “the references also lack structure wherein the upper
tie plate restraint device is disposed in the container in only one correct
orientation.” App. Br. 15. In response, the Examiner states “[i]f sub-
member 21 was rotated 90 or 180 degrees from the orientation in figures 4
and 5, the orientation [of] the restraint device would not be correct.” Ans.
17. The Examiner further explains
The upper tie plate restraint device sub-member 21
would not be located 90 or 180 degrees (or any
other angle for that matter) from the location of the
lower tie plate restrain[t] device sub-member 21A
because the stresses within the container would not
be balanced properly and the integrity of the fuel
assembly would be compromised.

Id. Appellants respond by arguing that the claim limitation “only one
correct orientation” should be interpreted “to mean a single orientation.”
Reply Br. 3.
Appellants’ argument is not persuasive. Appellants’ Specification
does not assign a particular definition of the term “correct,” or otherwise
indicate that this term is used in a manner other than its ordinary and
customary meaning. Appellants have not apprised us of error in the
Examiner’s interpretation of the claim term “correct” and have not identified
support in the Specification for interpreting the term “correct” as “a single
orientation.
For these reasons, we sustain the Examiner’s rejection of claim 8 and
claim 9 which depends therefrom and was not argued separately.
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Claim 16
The Examiner finds that Sappey discloses each and every limitation of
independent claim 16 except for an “inner container includ[ing] a pair of
restraint devices shaped to receive the lower tie plate and the upper tie plate,
respectively, the pair of restraint devices being securable in only one correct
orientation, respectively.” Ans. 10-11. The Examiner further finds
“Yoshizawa et al. teaches an inner container 5B that includes a pair of
restraint devices 21A/18a/18c, 21/18a/18c (figures 5 and 6) shaped to
receive the lower tie plate 103 and the upper tie plate 102 respectively, the
pair of restraint devices being securable in only one correct orientation,
respectively.” Id.
Appellants state “[i]ndependent claim 16 defines related subject
matter including a pair of restraint devices that receive the lower tie plate
and the upper tie plate, respectively, where the pair of restraint devices are
each secured in the inner container in only one orientation.” App. Br. 15.
Appellants argue “with reference to the discussions above concerning
independent claims 6 and 8, Appellants submit that this subject matter is
lacking in Sappey and Yoshizawa.” Id.
Appellants argument is unconvincing because claim 16 does not
require the recited pair of restraint devices to “always engag[e] all sides” of
the upper or lower tie plates as discussed supra regarding claim 6; and, as
also discussed supra, we discern no error in the Examiner’s rejection of
claim 8.
For these reasons we sustain the Examiner’s rejection of claim 16.

Appeal 2011-001052
Application 11/940,434

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Claims 10 and 17
Appellants argue that these dependent claims are allowable at least by
virtue of their dependency on an allowable independent claim, and that
Peters does not correct the deficiencies of Sappey and Yoshizawa. App. Br.
16.
As discussed supra, we discern no error in the rejection of claims 8
and 16, from which claims 10 and 17 depend, respectively. Accordingly, we
sustain the Examiner’s rejection of claims 10 and 17.
DECISION
We reverse the Examiner’s rejection of claims 2-6, 11, 13 and 14, and
affirm the Examiner’s rejection of claims 8, 9, and 16, under 35 U.S.C. §
103(a) as unpatentable over Sappey and Yoshizawa.
We reverse the Examiner’s rejection of claim 7, and affirm the
Examiner’s rejection of claims 10 and 17, under 35 U.S.C. § 103(a) over
Sappey, Yoshizawa and Peters.
We reverse the Examiner’s rejection of claim 12 under 35 U.S.C.
§ 103(a) as unpatentable over Sappey, Yoshizawa and Papai.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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