Ex Parte Ahlfeld et al

Patent Trial and Appeal Board

Feb 22, 2017

12657736 (P.T.A.B. Feb. 22, 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.
12/657,736 01/25/2010 Charles E. Ahlfeld 365032CIP/0108-032-001-C0 8791
136716 7590 02/24/2017
HolzerlPLaw, PC
216 16th Street
Suite 1350
Denver, CO 80202
EXAMINER
MCGUE, FRANK J
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
02/24/2017 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):
docket @ holzerlPlaw. com
docketing @ terrapo wer. com
hiplaw@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES E. AHLFELD, EHUD GREENSPAN,
RODERICK A. HYDE, NATHAN P. MYHRVOLD,
ROBERT R. RICHARDSON, JOSHUA C. WALTER,
KEVAN D. WEAVER, THOMAS ALLAN WEAVER,
LOWELL L. WOOD, JR., and GEORGE B. ZIMMERMAN
Appeal 2015-001592
Application 12/657,736
Technology Center 3600
Before CHARLES N. GREENHUT, MICHELLE R. OSINSKI,
BRENT M. DOUGAL, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Charles E. Ahlfeld et al. (Appellant)1 appeals under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 193—206, 214, 215, 218, and
219.2 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify the real party in interest as Terrapower, LLC. Appeal
Br. 3.
2 Claims 220-233, 241, 242, 245-260, 268, 269, 272, 273, and 339-348 are
withdrawn, and claims 1—192, 207—213, 216, 217, 234—240, 243, 244, 261—
267, 270, 271, and 274—338 are cancelled. Appeal Br. 41—51 (Claims App.).
Appeal 2015-001592
Application 12/657,736
THE CLAIMED SUBJECT MATTER
Claim 193, the sole independent claim is reproduced below and is
representative of the claimed subject matter on appeal.
having a fast neutron spectrum, the method comprising:
determining a desired reactivity parameter within a.
selected portion of a nuclear fission reactor havi ng a fast neutron
spectrum; and
adjusting at least one reactivity control rod having fast
spectrum neutron absorbing material, at least a portion of the fast
spectrum neutron absorbing material including fertile nuclear
fission fuel material, responsive to the desired reactivity
parameter.
The Examiner relied on the following evidence in rejecting the claims
on appeal:
I. Claims 193 and 194 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over Gilleland and Nakamaru. Final Act. 2—3.
II. Claims 195—200, 203, 204, 206, 214, 215, and 218 stand rejected
under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Gilleland,
Nakamaru, and Bolton. Id. at 3—8.
III. Claims 201, 202, and 205 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Gilleland, Nakamaru, Bolton, and
Alexandra. Id. at 8—9.
EVIDENCE
Alexandra, Jr.
Nakamaru
Bolton
Smith
Gilleland
US 5,349,541 Sept. 20, 1994
US 2002/0080908 A1 June 27, 2002
US 2004/0114703 A1 June 17, 2004
US 2006/0226668 A1 Oct. 12, 2006
US 2009/0252273 A1 Oct. 8, 2009
REJECTIONS
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Appeal 2015-001592
Application 12/657,736
IV. Claim 219 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Gilleland, Nakamaru, Bolton, and Smith. Id. at 9.
OPINION
Rejection I
With respect to independent claim 193, the Examiner finds that
Gilleland teaches the method step of determining a desired reactivity
parameter within a selected portion of a nuclear fission reactor having a fast
neutron spectrum; and that Nakamura teaches the method step of adjusting at
least one reacti vity control rod having fast spectrum neutron absorbing
material, at least a portion of the fast spectrum neutron absorbing material
including fertile nuclear fission fuel material, responsive to the desired
reactivity parameter. Final Act. 3 (citing Gilleland, 31, 58, 74;
Nakamaru, *ff[ 43, 67, 68, 86); Ans. 2—3 (citing Gilleland *ffj 31, 58, 74;
Nakamaru, Iff 9, 11, 12, 43, 86). The Examiner concludes that it would have
been obvious to modify Gilleland’s method “to include adjusting a control
rod containing neutron absorbing material, as taught by Nakamaru, in order
to improve the ability to regulate and control the method of operating the
nuclear fission reactor of Gilleland, Final Act. 3; Ans. 3.
Specifically as to the control rod having neutron absorbing material
including fertile nuclear fission fuel material, as recited in the claim, the
Examiner first points to Nakamaru’s paragraph 12 as disclosing that “control
rods are made of a neutron-absorbing material.” Ans. 9—10. The Examiner
then points to Nakamaru’s disclosure of “uranium 238” in paragraph 9 or
Nakamaru’s disclosure of “uranium oxide and other fissionable materials” in
paragraph 11 as disclosing that control rods further include fertile nuclear
fission fuel material. Id. at 10. The Examiner also points to Gilleland’s
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Appeal 2015-001592
Application 12/657,736
disclosure of “uranium 238 and thorium 232 to absorb fast neutrons.” Id.
(citing “paragraph spanning pages 5—6”). The Examiner maintains that
“[t]he suggestions in both Gilleland and Nakamura for use of fertile nuclear
material in control rods to control the reactivity would improve the ability to
regulate and control the method of operating a nuclear fission reactor as
claimed.” Id.
Appellants argue that the reference to “uranium 238” in paragraph 9
of Nakamaru relates to “neutron absorption by uranium 238 in fuel
assemblies and converting the uranium 238 in fuel assemblies into
plutonium.” Reply Br. 8 (emphasis omitted). Appellants explain that the
paragraph “is discussing adjustments to the fuel rods within the fuel
assemblies in a boiling water reactor ... in response to effects from the
control operating system (that includes the control rods of Tflf []4—[]7 and
flow control of 1 []8),” in contrast to teaching uranium 238 in control rods as
alleged by the Examiner. Id. at 9.
Appellants next argue that the reference to “uranium oxide and other
fissionable materials” in paragraph 11 of Nakamaru relates to materials used
“as base materials to provide structural stability for burnable poisons in fuel
assemblies.” Reply Br. 8—9 (emphasis omitted). Appellants explain that
“[i]t is within th[e] context of control of reactivity of the fuel rods (as part of
the fuel assembly) in response to the control operating system of the control
rods and flow control. . . that provides the context for the burnable poison
and fissionable fuel of the fuel rods discussion in paragraphs [] 10 and []11.”
Id. at 9. That is, Appellants argue that paragraph 11 of Nakamaru relates to
the use of uranium oxide and other fissionable materials in fuel rods, in
contrast to teaching the material in control rods as alleged by the Examiner.
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Appeal 2015-001592
Application 12/657,736
Appellants argue that fuel rods are not equivalent to the claimed
reactivity control rods “which is apparent on the face of the two recitations
and is readily known in the art.” Appeal Br. 29. Appellants also generally
point out that the only disclosed materials making up the control rods in
Nakamaru are boron carbide (B4C) and hafnium (Hf). Reply Br. 8 (citing
Nakamaru 112). Appellants argue that “interpreting a control rod of the
Background of the Invention section of Nakam[aru] as being made of
uranium 238 or uranium oxide and other fissionable materials is contrary to
the disclosure of Nakam[aru].” Id. at 10.
The ultimate question of patentability is one of law. Graham v. John
Deere Co., 383 U.S. 1, 17 (1966). Nevertheless, the ultimate legal
conclusion must be decided on the basis of underlying factual findings. The
Examiner must provide sufficient facts to support the conclusion of
obviousness by a preponderance of the evidence. See In re Caveney, 761
F.2d 671, 674 (Fed. Cir. 1985). In order to satisfy this standard, the
evidence must demonstrate that it is more likely than not that the alleged
facts are actually true. See Bosies v. Benedict, 27 F.3d 539, 542 (Fed. Cir.
1994) (the preponderance of the evidence standard requires the finder of fact
to believe that the existence of a fact is more probable than its nonexistence).
We are persuaded by Appellants’ argument that the Examiner has not
established by a preponderance of the evidence that: Nakamaru teaches
uranium 238 or uranium oxide and other fissionable materials in at least a
portion of fast spectrum neutron absorbing material in a reactivity control
rod. More particularly, the Examiner does not provide sufficient evidence to
demonstrate that it is more likely than not that the uranium 23 8 or uranium
oxide and other fissionable materials referenced in paragraphs 9 and 11 of
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Appeal 2015-001592
Application 12/657,736
Nakamara are in a reactivity control rod. Rather, we agree with Appellants
that the context provided by the entirety of the disclosure of Nakamara
supports that it is actually more likely than not that Nakamara teaches
uranium 238 or uranium oxide and other fissionable materials within fuel
rods of fuel assemblies, not within reactivity control rods. The Examiner’s
conclusion of obviousness is thus based on an erroneous finding as to the
scope and content of Nakamara.
As to the Examiner’s finding that Gilleland discloses “uranium 238
and thorium 232 to absorb fast neutrons” (Ans. 10), the Examiner provides
no indication as to whether the uranium 238 or thorium 232 is included in
fast spectrum neutron absorbing material of a reactivity control rod in
particular. In our independent review of the reference, we do not discern
where Gilleland teaches the use of these materials specifically within the
context: of a reacti vity control rod, as claimed.
For the foregoing reasons, we are persuaded that the Examiner erred
in concluding that the subject matter of claim 193 would have been obvious
over the combination of Gilleland and Nakamara. We do not sustain the
rejection of independent claim 193, and claim 194 which depends therefrom,
under 35 U.S.C. § 103(a) as unpatentable over Gilleland and Nakamara.
Rejection II, III, and IV
Because the Examiner’s rejections of claims 195—206, 214, 215, 218,
and 219 rely on the same erroneous finding that Nakamara discloses a
control rod having neutron absorbing material including fertile nuclear
fission fuel material (Final Act. 3, 8, 9) and because the Examiner has not
explained how Bolton, Alexandra, and/or Smith might remedy this
deficiency, we likewise do not sustain the rejections, under 35 U.S.C.
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Appeal 2015-001592
Application 12/657,736
§ 103(a), of: claims 195-200, 203, 204, 206, 214, 215, and 218 as
unpatentable over Gilleland, Nakamara, and Bolton; claims 201, 202, and
205 as unpatentable over Gilleland, Nakamaru, Bolton, and Alexandra; and
claim 219 as unpatentable over Gilleland, Nakamara, Bolton, and Smith.
DECISION
The Examiner’s decision to reject claims 193—206, 214, 215, 218, and
219 under 35 U.S.C. § 103(a) is reversed.
REVERSED
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