13066253 (P.T.A.B. Sep. 27, 2017)

Ex Parte Ahlfeld et al

Patent Trial and Appeal BoardSep 27, 2017

13066253 (P.T.A.B. Sep. 27, 2017)

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. 13/066,253 04/08/2011 Charles E. Ahlfeld 0707-032-027-000000/8US01 9171 135984 7590 09/29/2017 TerraPower M&G P.O. Box 2903 Minneapolis, MN 55402 EXAMINER DAVIS, SHARON M ART UNIT PAPER NUMBER 3646 NOTIFICATION DATE DELIVERY MODE 09/29/2017 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): usptol35984@merchantgould.com docketing @ terrapo wer. com mskog@merchantgould.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHARLES E. AHLFELD, WILLIAM W. BOWEN, RODERICK A. HYDE, RONALD L. KLUEH, SEAN M. MCDEAVITT, JOSHUA C. WALTER, and STEVE R. KIRKENDALL Appeal 2015-005222 Application 13/066,2531 Technology Center 3600 Before MICHAEL C. ASTORINO, NINA L. MEDLOCK, and BRUCE T. WIEDER, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1—16, 24, 29, 34-41, 45, and 47-49. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 According to the Appellants, “[t]he real party in interest on this appeal is Terrapower, LLC by virtue of an assignment of inventors to Searete LLC . . . and an additional assignment from Searete LLC to Terrapower, LLC.” Appeal Br. 4. Appeal 2015-005222 Application 13/066,253 STATEMENT OF THE CASE Subject Matter on Appeal The Appellants’ invention “generally relates to nuclear fuel and a method for fabricating a nuclear fuel, and, more particularly, to a swelling resistant nuclear fuel and a method for fabricating a swelling resistant nuclear fuel.” Spec. 11. Claim 1, the sole independent claim on appeal, is representative of the subject matter on appeal and is reproduced below. 1. A nuclear fuel, comprising: a volume of a nuclear fuel material defined by a surface, the nuclear fuel material including a plurality of grains, some of the plurality of grains having a characteristic length along at least one dimension smaller than or equal to a selected distance, the selected distance suitable for maintaining adequate diffusion of a fission product from a grain interior to at least one grain boundary in some of the grains, the nuclear fuel material including a boundary network configured to transport the fission product from at least one grain boundary of some of the grains to the surface of the volume of the nuclear fuel material. Rejections I. Claims 1—16, 24, 29, 34-41, 45, and 47^49 stand rejected under 35U.S.C. § 112, second paragraph, as indefinite. II. Claims 1—16, 24, 29, 34—37, 45, and 47^49 stand rejected under 35 U.S.C. § 102(b) as anticipated by Spino et al. (US 2009/0324953 Al, pub. Dec. 31, 2009, hereinafter “Spino”). III. Claims 38-40 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Spino and M.S. Veshchunov, A new model of grain 2 Appeal 2015-005222 Application 13/066,253 growth kinetics in UO2 fuel pellets. Part 1: Grain growth kinetics controlled by grain face bubble migration, Journal of Nuclear Materials, Vol. 346, 208—219 (2005) (hereinafter “Veshchunov”). IV. Claim 41 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Spino and Ryoichi et al. (EP 0 502 395 B2, pub. Sept. 9, 1992, hereinafter “Ryoichi”). ANALYSIS Rejection I As for the rejection of claim 1, the Examiner determines that “a volume of a nuclear fuel material defined by a surface” is indefinite because this limitation of claim 1 “cannot be understood to have any definitive meaning, nor is meaning given to this limitation in the [Specification.” Final Act. 6—7. Yet, the Examiner explains that the “limitation will be given the broadest reasonable interpretation and will be taken to mean any material containing nuclear fuel having any shape.” Id. at 7. It is the Appellants’ position that the Examiner’s explanation demonstrates “that the Examiner has very clearly been able to interpret the ‘metes and bounds’ associated to this limitation of Claim 1.” Appeal Br. 16. We agree. As for the rejection of claim 11, the Examiner determines that “a characteristic length along a selected dimension of some of the plurality of grains” is indefinite because the limitation of claim 11 “cannot be understood to have any definitive meaning, nor can the meaning be easily gleaned from a reading of the [Specification.” Final Act. 7. The Appellants argue that the Examiner “merge[s] the concept of ‘breadth’ with the concept of ‘indefmiteness.’” Appeal Br. 22. The Appellants explain, “one of 3 Appeal 2015-005222 Application 13/066,253 ordinary skilled in the art will understand the pertinent recitation to mean that ‘some of the grains’ of Claim 11 are constrained in ‘characteristic length’ along a ‘dimension’ that is ‘selected.’” Id. We agree. As for the rejection of claims 12 and 13, for reasons similar to those provided for the rejection of claim 11, we agree with the Appellants that these claims are not indefinite. See id. at 22—23, 25—26. As for the rejection of claim 37, which recites “at least one transportation pathway . . . intersects with the at least one grain boundary,” the Examiner determines that “it is unclear what limitation Applicant is attempting to claim by stating the transportation pathway intersects with a grain boundary.” Final Act. 7. The Appellants argue that the Examiner inappropriately merges breadth with indefiniteness. Appeal Br. 30-31. We agree. Furthermore, we note the Appellants explain that “Figures 1A and IB of the [a]s-filed Specification clearly illustrate how ‘at least one transportation pathway 116... intersects with the at least one grain boundary 112’ (emphasis added).” Id. at 30 (quoting Spec. 163). Although neither Figure 1A nor IB identifies transportation pathway 116 and grain boundary 112 in the same figure — which would provide helpful guidance — such does not suggest that the limitation of claim 37 is indefinite. Therefore, we do not sustain the Examiner’s rejection of claims 1—16, 24, 29, 34-41, 45, and 47-49 under 35 U.S.C. § 112, second paragraph, as indefinite. 4 Appeal 2015-005222 Application 13/066,253 Rejections II—IV The Examiner finds: Spino teaches the nuclear fuel material including a boundary network, or multiple grain boundaries (Para. [0006]) configured to transport the fission product from at least one grain boundary of some of the grains to the surface of the volume of the nuclear fuel material, illustrated by the recitation of Spino that fission gas release is associated with an increase in fuel road [sic] internal pressure, which may cause cladding lift-off, among other effects (Para. [0003]). Final Act. 8. The Appellants argue that Spino fails to disclose “the nuclear fuel material including a boundary network configured to transport the fission product from at least one grain boundary of some of the grains to the surface of the volume of the nuclear fuel material,” as recited in independent claim 1. See Appeal Br. 43—47. More particularly, the Appellants argue that “Spino suggests that the fission gas release be trapped within the closed pores of the pellets, and does not teach or suggest that the fission product [is transported by a boundary network] to the surface of the volume of the nuclear material.” Id. at 46 (citing Spino 140); see also id. at 43 (citing Spino 13), 47 (citing Spino 1 6). In this case, the Examiner fails to persuasively explain with evidence and/or technical reasoning how Spino’s disclosure —particularly the disclosure in paragraphs 3 and 6 — reads on the argued limitation of claim 1. Thus, we do not sustain the Examiner’s rejection of independent claim 1, and its dependent claims, as anticipated by Spino. As for the remaining rejections based on Spino in combination with Veshchunov or Ryoichi, these rejections rely on the same inadequately supported finding as discussed above. And, the Examiner fails to persuasively explain how the 5 Appeal 2015-005222 Application 13/066,253 teachings of either Veshchunov or Ryoichi remedy the deficiency of Spino. As such, we do not sustain the rejections of: claims 38-40 as unpatentable over Spino and Veshchunov; and claim 41 as unpatentable over Spino and Ryoichi. DECISION We REVERSE the Examiner’s decision rejecting claims 1—16, 24, 29, 34-41, 45, and 47-A9. REVERSED 6