Ex Parte Russell et al

Board of Patent Appeals and Interferences

Feb 12, 2009

10608086 (B.P.A.I. Feb. 12, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte WILLIAM EARL RUSSELL II,
DAVID JOSEPH KROPACZEK and GLEN ALAN WATFORD
____________

Appeal 2008-4642
Application 10/608,086
Technology Center 3600
____________

Decided: February 12, 20091
____________

Before WILLIAM F. PATE, III, JENNIFER D. BAHR, and
JOHN C. KERINS, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2008-4642
Application 10/608,086

STATEMENT OF THE CASE
William Earl Russell II et al. (Appellants) seek our review under
35 U.S.C. § 134 of the Examiner’s final rejection of claims 31-41, the only
claims now pending in the application. We have jurisdiction under
35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We REVERSE.

THE INVENTION
Appellants’ claimed invention is to a method for determining
independent control variable values in an operating nuclear reactor, in which
state-point data is received and an “optimization process” is performed using
that data to generate “one or more independent control variable values”.
(Appeal Br., Claims Appendix, claim 31).
Claim 31, reproduced below, is representative of the subject matter on
appeal.
31. A method of determining independent control
variable values for a nuclear reactor under
operation, comprising:

receiving state-point data for the operating nuclear
reactor, the state-point data including current
values for independent control variables and for
dependent performance variables of the operating
nuclear reactor; and

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performing an optimization process on one of a
computer and computer network based on the
received state-point data to generate one or more
independent control variable values.

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Musick US 4,080,251 Mar. 21, 1978
Takeuchi US 5,009,833 Apr. 3, 1991
Pryor, Jr., “The Economics of Nuclear Energy”, Nuclear Plant
Journal Editorial Archive, October 30, 1998.
Dozier, et al., “Winning Strategies for Maintenance Optimization at
U.S. NPPs”, Nuclear Plant Journal Editorial Archive, March 3, 2000.
Knollenberg, “The Energy Supply for the United States & the Role of
Nuclear Energy”, transcript of speech delivered at the University of
Michigan, April 20, 2000 (accessed February 7, 2007 at
http://www.house.gov/knollenberg/mediacenter/speeches/2000/04.20.00.htm
).
The Examiner has rejected claims 31-39 under 35 U.S.C. § 103(a) as
being unpatentable over Musick in view of any of Pryor, Dozier, and
Knollenberg. The Examiner has rejected claims 40 and 41 under 35 U.S.C.
§ 103(a) as being unpatentable over Musick in view of Pryor, Dozier, and
Knollenberg, and further in view of Takeuchi.
ISSUE
The Examiner concluded that the combined teachings of Musick,
Pryor, Dozier and Knollenberg renders unpatentable a method of
determining independent control variables values that includes performing

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an optimization process based on received state-point data to generate one or
more such values for independent control variables.
Appellants urge that the combination of references does not teach or
suggest (1) an optimization process; (2) [an optimization process] based on
received state-point data; and (3) [an optimization process] to generate one
or more independent control variable values.
The issue joined in this appeal is: have Appellants demonstrated that
the Examiner erred in reaching the conclusion that the claims are
unpatentable?

FINDINGS OF FACT
The following enumerated findings of fact (FF) are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
FF 1. Dozier discloses maintenance strategies that have the goal of
increasing reliability and plant availability while reducing costs. (Dozier, p.
1, section titled “Purpose”).
FF 2. Pryor discloses that plant efficiencies, as gauged by plant
operating capacity factors, may be optimized by avoiding forced plant
outages and optimizing maintenance operations. (Pryor, p. 2, section titled
“The Nuclear Industry Today”).
FF 3. Appellants identify that their optimization process is desirably
conducted to bring about, “improved fuel cycle efficiency, better global
reactor economics and enhanced operational efficiency”. (Specification,
¶[0010]).

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FF 4. Claim 31 contains no element or limitation that specifies what
aspect or aspects of the operation of the nuclear reactor are to be optimized
in performing the claimed optimization process. (Appeal Br., Claims
Appendix, claim 31).
FF 5. Musick discloses, at columns 13 and 15, parameters that are to
be used as inputs to the Musick control process. (Musick, col. 13, ll. 11-37;
col. 15, l. 29-col. 16, l. 13).
FF 6. Musick discloses that a calculated/generated operating limit
can be “register[ed] … on a visual indicator 170 which would allow the
reactor operator to compare the actual reactor operating condition to the
[Core Operating Limit Supervisory System, or COLSS] limit. With this
knowledge available to the operator, he will be able to operate the reactor in
such a way that sufficient margin is continuously maintained while at the
same time maximizing the capability and availability of the reactor.”
(Musick, col. 12, ll. 8-23).
FF 7. Musick further states that the plant power could automatically
be restricted to be within the COLSS limit, without stating how this would
be done. (Musick, col. 12, ll. 23-26).
FF 8. Musick describes that a limit (false limit, because a safety
margin is built in) is displayed to the operator to inform him that if that limit
were to be exceeded, the DNBR [Departure from Nucleate Boiling Ratio]
margin would be less than required. Musick further discloses that the
operator has two choices if the margin is encroached upon: (1) insert control
rods to decrease actual reactor power; or (2) vary one of the other parameters
on which the DNBR is dependent, such as coolant pressure or coolant mass

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flow rate, to raise the computed power limit (increasing the DNBR margin).
(Musick, col. 20, ll. 1-68).

PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, ___,
127 S. Ct. 1727, 1734 (2007). The question of obviousness is resolved on
the basis of underlying factual determinations including (1) the scope and
content of the prior art, (2) any differences between the claimed subject
matter and the prior art, (3) the level of skill in the art, and (4) where in
evidence, so-called secondary considerations. Graham v. John Deere Co.,
383 U.S. 1, 17-18 (1966). See also KSR, 550 U.S. 398 at ___, 127 S. Ct. at
1734 (“While the sequence of these questions might be reordered in any
particular case, the [Graham] factors continue to define the inquiry that
controls.”).
ANALYSIS
Appellants argue all of claims 31-39 as a first group, and argue
separately claims 40 and 41 as a second group. Claims 31 and 40 will be
regarded as the representative claims of these two groups.
The claims in their current form were the subject of a previous appeal,
No. 2006-1486. In that proceeding, rejections made by the Examiner under
35 U.S.C. § 102(b) in view of Takeuchi and, separately, in view of Musick,
and under 35 U.S.C. § 103(a) over Musick in view of Takeuchi, were

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reversed. The application was remanded to the Examiner, “to determine
whether prior art is available that discloses, or would have fairly suggested,
to one of ordinary skill in the art, performing a computerized optimization
process of a nuclear reactor to generate, from received state-point data, one
or more independent control variable values.” (Decision on Appeal dated
May 24, 2006, p. 5)(hereafter, “Prior Decision”).

Claims 31-39
Appellants contend that the cited prior art fails to teach (1) an
optimization process; (2) [an optimization process] based on received state-
point data; and (3) [an optimization process] to generate one or more
independent control variable values. (Appeal Br. 14).
The Examiner relies on Musick as disclosing a computerized control
method for a nuclear plant that maximizes plant capacity and availability
within acceptable fuel design limits. (Answer 5). The Examiner relies on
any of Dozier, Knollenberg, or Pryor as evidencing that persons of ordinary
skill in the art would appreciate that nuclear plant control methods which
seek to increase reliability, plant availability, and/or plant capacity would be
considered to be optimization processes, and thus the Musick control method
performs an optimization process. (Answer 6-7).
The additional references (Dozier, Knollenberg, Pryor) do, as asserted
by the Examiner, establish that the control system disclosed in Musick
operates to achieve what persons of ordinary skill in the art would consider
an “optimization” of plant operations. For example, Dozier discloses
maintenance strategies that have the goal of increasing reliability and plant
availability while reducing costs. (FF 1). As but another example, Pryor

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discloses that plant efficiencies, as gauged by plant operating capacity
factors, may be optimized by avoiding forced plant outages and optimizing
maintenance operations. (FF 2). Indeed, Appellants’ Specification
identifies that their optimization process is desirably conducted to bring
about, “improved fuel cycle efficiency, better global reactor economics and
enhanced operational efficiency”. (FF 3). Appellants additionally
acknowledge that these references teach that optimization may include
maximized plant availability and capacity within particular design limits.
(Reply Br. 5).
Appellants contend that the Musick process involves using modified
plant parameters to generate operating limits for safe operation and
termination. (Appeal Br. 11). Appellants urge that is wholly distinct from a
general optimization process that is based on state-point data or generates an
independent control variable, and contend that the Board, in its prior
decision, agreed that this was a distinguishing feature.2 (Id.). Appellants
further characterize the Musick system as one for monitoring a safe
shutdown process based on modified operational data to generate a design
limit. (Appeal Br. 14).
Claim 31 contains no element or limitation that specifies what aspect
or aspects of the operation of the nuclear reactor are to be optimized in
performing the claimed optimization process. (FF 4). A process that
generates a safe operating limit or a design limit for the nuclear reactor, and
that conveys information pertaining thereto for use by an operator of the

2 In reversing the then-extant anticipation rejection, the Board found that,
“Musick determines the design limits … . The examiner has not established
that Musick discloses, or would have fairly suggested, … , determining the
optimum within those limits.” (Prior Decision 4).

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nuclear reactor, to thereby allow the reactor to be operated more safely and
efficiently, within design limits, constitutes an optimization process, as
broadly claimed.
The Examiner found, and Appellants acknowledge, that the Musick
control process includes a step of receiving state-point data including at least
one current value for an independent control variable, namely a reactor
coolant flow rate, and including values of dependent control variables.
(Answer 2, 10; Appeal Br. 13). As such, we are not persuaded by
Appellants’ contention (see (2) above) that the prior art does not teach
performing an optimization process that is based on received state-point
data.
Appellants finally contend that the Musick control process fails to
generate one or more independent control variable values, a further element
present in claim 31. (Appeal Br. 13; Reply Br. 4-6).
The Examiner contends that Musick involves, “maximization of plant
capacity and availability within design limits [that] optimizes ONLY
selected parameters (which includes independent control variables) and
NOT all parameters, because changing one parameter inherently causes
change in some other parameters”, and that this meets the claim limitation
requiring the generation of at least one independent control variable.
(Answer 5, 9)(emphasis in original). The Examiner additionally asserts that,
“maximization of plant capacity and availability INHERENTLY includes
optimization of at least one independent control variable, as confirmed by
the teaching in any of Dozier, Knollenberg, or Pryor, Jr.” (Answer
10)(emphasis in original). Finally, the Examiner asserts that passages found
in Musick at column 13, lines 22+, and at column 15, lines 35+, establish

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that the Musick process generates one or more independent control variables
from received state-point data. (Answer 7, citing to “Background” section at
Answer 2).
With respect to this last contention, the Examiner’s reliance on the
passages cited from columns 13 and 15 of the Musick patent as teaching the
generation, by an optimization process, of one or more independent control
variables is misplaced. Musick, in those passages, discloses parameters that
are to be used as inputs to the Musick control process. (FF 5). Nowhere in
those passages is it disclosed that an output of the control process is the
generation of an independent control variable.
The Examiner’s assertions that this claim element is an inherent result
of the Musick control process are also misplaced. Musick, at one place,
states that a calculated/generated operating limit can be “register[ed] … on a
visual indicator 170 which would allow the reactor operator to compare the
actual reactor operating condition to the [Core Operating Limit Supervisory
System, or COLSS] limit. With this knowledge available to the operator, he
will be able to operate the reactor in such a way that sufficient margin is
continuously maintained while at the same time maximizing the capability
and availability of the reactor.” (FF 6). Alternatively, Musick states that the
plant power would automatically be restricted to be within the COLSS limit
(FF 7), without stating how this would be done.
In a somewhat more detailed discussion of the COLSS, Musick
describes that a limit (false limit, because a safety margin is built in) is
displayed to the operator to inform him that if that limit were to be exceeded,
the DNBR [Departure from Nucleate Boiling Ratio] margin would be less
than required. (FF 8). The operator is said to have two choices if the margin

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is encroached upon: (1) insert control rods to decrease actual reactor power;
or (2) vary one of the other parameters on which the DNBR is dependent,
such as coolant pressure or coolant mass flow rate, to raise the computed
power limit (increasing the DNBR margin). (Id.).
None of this detailed discussion points to the generation of an
independent control variable value by the Musick control process. The
COLSS limit and the DNBR, which are two values generated by the process,
have not been established by the Examiner to be independent control
variables. To the contrary, Musick appears to evidence that these values are
dependent performance variables of the operating nuclear reactor.
We are further not persuaded that any of the Musick, Dozier,
Knollenberg, or Pryor, Jr., references evidence that values for one or more
independent control variables are inherently generated in a nuclear reactor
optimization process. The Musick control scheme appears to leave it to a
human operator to determine, based solely on providing overall operational
limits (COLSS limit, DMBR), whether or not to change any of the
independently controllable variables. (Id.). The alternative control scheme,
as disclosed, is to automatically restrict the plant power to be within the
COLSS limit if a particular limit is approached. (FF 7). Neither of these
control schemes appears to contemplate the generation of values for any
independent control variables. The Examiner has not identified any specific
portions of the other references that tend to establish that values for
independent control variables are necessarily generated in performing a
reactor optimization process.
Appellants have thus established that the combined teachings of
Musick, Dozier, Knollenberg, and Pryor, Jr., do not disclose or suggest a

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method for determining independent control variable values that includes
performing an optimization process that generates one or more of such
independent control variable values. The rejection of claims 31-39 will not
be sustained.
Claims 40-41
Claims 40 and 41 depend from claim 31. The claims are rejected as
being unpatentable over the teachings of the references applied to claim 31,
and further in view of Takeuchi. The Examiner does not identify any part of
the cited Takeuchi reference that appears to overcome the deficiency
discussed above with respect to claim 31 and the other cited references.
Additionally, we do not find any disclosure in Takeuchi of performing an
optimization process that generates values of one or more independent
control variables.
Appellants have persuaded us that error was committed in the
rejection of claim 40 and 41 under 35 U.S.C. § 103(a) over Musick in view
of Pryor, Dozier, or Knollenberg, and further in view of Takeuchi. The
rejection of claims 40 and 41 will not be sustained.

CONCLUSION
Appellants have established that reversible error exists in the rejection
of claims 31-41 under 35 U.S.C. § 103(a).
ORDER
The decision of the Examiner to reject claims 31-41 is:

REVERSED

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HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 8910
RESTON, VIRGINIA 20195

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