Ex Parte JIANG et alDownload PDFPatent Trial and Appeal BoardMay 25, 201813691891 (P.T.A.B. May. 25, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/691,891 12/03/2012 XIAOY AN (JANE) JIANG 26353 7590 05/30/2018 WESTINGHOUSE ELECTRIC COMPANY, LLC 1000 Westinghouse Drive Suite 141 Cranberry Township, PA 16066 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. ARF2004-010 CON 8950 EXAMINER MCGUE, FRANK J ART UNIT PAPER NUMBER 3646 NOTIFICATION DATE DELIVERY MODE 05/30/2018 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): guerral@westinghouse.com spadacjc@westinghouse.com coldrerj@westinghouse.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte XIAOY AN (JANE) JIANG, YIBAN XU, and ZESES E. KAROUTAS Appeal2017-007236 Application 13/691,891 Technology Center 3600 Before JAMES P. CALVE, ARTHUR M. PESLAK, and ANTHONY KNIGHT, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Xiaoyan (Jane) Jiang et al. ("Appellants") appeal under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1, 21, and 22. 1 We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. 1 Westinghouse Electric Company LLC is identified as the real party in interest. Appeal Br. 1. Appeal2017-007236 Application 13/691,891 THE CLAIMED SUBJECT MATTER Claim 1, reproduced below, is representative of the claimed subject matter. 1. A support grid for a nuclear fuel assembly, said nuclear fuel assembly including a generally cylindrical fuel rod with a diameter, said support grid comprising: a plurality of generally tubular frame members defining frame assembly including a plurality of generally cylindrical cells, each said cell including at least one sidewall, at least one generally cylindrical tubular member including a cell contact portion with a greater diameter and at least one helical fuel rod contact portion with a lesser diameter, said cell contact portion and said fuel rod contact portion joined by a transition portion, said greater diameter being generally equivalent to said cell radius, and said lesser diameter being generally equivalent to said fuel rod diameter such that a fuel rod disposed in said tubular member would engage said lesser diameter; and each of said at least one tubular member disposed in one cell of said plurality of generally circular cells so that said cell contact portion engages said cell sidewall. REJECTIONS 1) Claims 1, 21, and 22 are rejected under 35 U.S.C. § 103(a) as unpatentable over Nylund (US 5,778,035, issued July 7, 1998) and Patterson (US 4,726,926, issued Feb. 23, 1988). Ans. 2. 2) Claims 1, 21, and 22 are rejected under 35 U.S.C. § 103 (a) as unpatentable over Marmonier (US 4,056,441) issued Nov. 1, 1977) and Patterson. Id. at 4. 2 Appeal2017-007236 Application 13/691,891 3) Claim 1 is rejected under 35 U.S.C. § 103(a) as unpatentable over Nylund in view ofBeuchel (FR 2531258, published July 27, 1983). Id. at 5. 4) Claims 21 and 22 are rejected under 35 U.S.C. § 103(a) as unpatentable over Nylund, Beuchel, and Patterson. Id. at 7. 5) Claim 1 is rejected under 35 U.S.C. § 103(a) as unpatentable over Marmonier and Beuchel. Id. 6) Claims 21 and 22 are rejected under 35 U.S.C. § 103(a) as unpatentable over Marmonier, Beuchel, and Patterson. Id. at 8-9. DISCUSSION Rejection 1 The Examiner finds that Nylund discloses most of the limitations of claim 1 including "a plurality of generally cylindrical cells." Ans. 2 ( citing Nylund, Figs. 1, 2, 5:40-41 and Patterson Fig. 1). The Examiner finds that Patterson discloses "a helical fuel rod contact portion ... which engage[ s] a fuel rod" and concludes that "it would have been obvious to modify Nylund by using the helical fuel rod contact portion of Patterson in order to provide coolant cross flow between coolant flow channels." Id. at 3. Appellants contend that the Examiner erred by asserting "that a single Nylund element discloses both the helical tubular members and the cylindrical cells." Appeal Br. 12. Appellants refer to Figure 6 of Nylund and argue that the rejection finds that Nylund's element 7f corresponds to both the recited tubular frame members and recited cylindrical cells which according to Appellants is improper because claim 1 also requires that the tubular members be "disposed in" a cell. Id. at 13-14. 3 Appeal2017-007236 Application 13/691,891 In the Answer, the Examiner compares Nylund's element 7f shown in Nylund's Figure 6 with Appellants' claimed tubular member 50 shown in Appellants' Figures 4 and 5. Ans. 14. Based on this comparison, the Examiner maintains that Nylund's element 7f also "defines a cylindrical cell." Id. For the following reasons, we do not sustain this rejection. Claim 1 requires two distinct elements. The first are "a plurality of generally tubular frame members" that include "a plurality of generally cylindrical cells." Further, claim 1 requires that "each of said at least one tubular member disposed in one cell." Appellants' Figure 4, referred to by the Examiner in the Answer, illustrates an embodiment with square cells 42 in which tubular frame members 50 are disposed. Spec. 8-9, Fig. 4. Appellants' Figure 10 illustrates an embodiment with cylindrical cells 42B in which tubular members 50 are disposed. Id. at 10, Fig. 10. While we appreciate the Examiner's reference to the correspondence between Nylund's Figure 6 and Appellants' Figure 4, claim 1 requires "generally cylindrical cells" in which "tubular frame members" are disposed. The cells in which Nylund's tubular members 7f are disposed are square rather than cylindrical. See Nylund Fig. 6. The Examiner's finding that Nylund's tubular supports 7f correspond to both the claimed "plurality of generally cylindrical cells" and "at least one generally cylindrical tubular member" ( Ans. 14) effectively reads one of those limitations out of claim 1, which recites them as separate elements such that one of the tubular members is disposed in one cell. See also Spec. Fig. 10. The Examiner has thus not established that Nylund discloses a "plurality of cylindrical cells" with "at least one tubular member disposed in one cell" as required by claim 1. As the rejection is based on an erroneous factual finding, the conclusion of 4 Appeal2017-007236 Application 13/691,891 obviousness cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (holding that "[t]he legal conclusion of obviousness must be supported by facts. Where the legal conclusion is not supported by facts it cannot stand."). We, thus, do not sustain the rejection of claim 1 and claims 21 and 22 which depend from claim 1 as unpatentable over Nylund and Patterson. 2 Rejection 2 The Examiner finds that Marmonier discloses most of the limitations of claim 1. Ans. 4--5. The Examiner finds that Patterson discloses "a helical fuel rod contact portion ... which engage[s] a fuel rod" and concludes that "it would have been obvious to modify Marmonier by using the helical fuel rod contact portion of Patterson in order to provide coolant cross flow between coolant flow channels." Id. at 5. Appellants argue that the Examiner does not make a specific finding that Marmonier discloses a plurality of cylindrical cells. Appeal Br. 25. In the Answer, the Examiner argues that Appellants "definition of 'generally cylindrical' is very broad" and encompasses the cells described in Appellants' Specification at page 8 and shown in Appellants' Figure 5. Ans. 16. The Examiner then finds that element 4 of Marmonier "is cylindrical as shown in Figs. 4 and 5." Id. 2 We note that claim 22 recites dependence from claim 7. Appeal Br. 3 7 (Claims App.). This appears to be a typographical error as a result of Appellants' inadvertent withdrawal of claims 7 and 8, which were re-entered as claims 21 and 22 for the purposes of appeal in an after final amendment. March 16, 2016 Adv. Act. We treat claim 22 as dependent from claim 21 for the purposes of this appeal. 5 Appeal2017-007236 Application 13/691,891 As with Rejection 1, the Examiner apparently misapprehends the scope of claim 1. Page 8 of Appellants' Specification describes the square cells shown in Appellants' Figure 4. Cells 42B in Appellants' Figure 10 are described as "cylindrical." Spec. 10:14. Element 4 in Marmonier is "a tube element" through which "the can 2 of the fuel pin ... passes." Marmonier, 3:29, 59---60. Thus, Marmonier's element 4 may correspond to the recited generally cylindrical tubular members, each of which contacts a fuel rod, but the Examiner has not identified any generally cylindrical cells in which these tubular members of Marmonier are disposed. As the Examiner has not established that Marmonier discloses a plurality of generally cylindrical cells, we do not sustain the rejection of claims 1, 21, and 22 as unpatentable over Marmonier and Patterson. Rejections 3 and 4 In Rejections 3 and 4, the Examiner relies on the same findings based on Nylund and Marmonier discussed above in connection with Rejections 1 and 2. Ans. 5---6, 7-8. In both rejections, the Examiner finds that Beuchel, rather than Patterson, discloses "a helical fuel rod contact portion ... which engage[s] a fuel rod." Id. at 6, 8. In responding to Appellants' arguments in the Appeal Brief, the Examiner notes that Beuchel discloses "helical tubular members 33 and a cylindrical cell 27." Id. at 14. For the following reasons, we do not sustain these rejections. In the rejections, the Examiner does not rely on Beuchel for disclosure of helical tubular members or cylindrical cells. Ans. 5---6, 7-8. Other than the cursory statement in the Answer, the Examiner does not provide any explanation of how Beuchel's elements 33 and 27 satisfy these limitations of claim 1, or how they modify Nylund or Marmonier. The Examiner relies on 6 Appeal2017-007236 Application 13/691,891 Beuchel in the rejection for disclosure of the helical fuel rod contact portion only. Ans. 6, 8. This finding does not cure the deficiencies in the disclosure of Nylund and Marmonier discussed above in connection with rejections 1 and 2. We, thus, do not sustain the rejections of claims 1, 21, and 22 as unpatentable over Nylund and Beuchel and Marmonier and Beuchel. DECISION The Examiner's decision rejecting claims 1, 21, and 22 is reversed. REVERSED 7 Copy with citationCopy as parenthetical citation