Ex Parte Fetterman

Patent Trial and Appeal Board

Oct 28, 2013

12198287 (P.T.A.B. Oct. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ROBERT J. FETTERMAN
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Appeal 2011-012328
Application 12/198,287
Technology Center 3600
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Before JOHN C. KERINS, WILLIAM A. CAPP, and
JILL D. HILL, Administrative Patent Judges.

HILL, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-012328
Application 12/198,287

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STATEMENT OF THE CASE
Robert J. Fetterman (Appellant) appeals under 35 U.S.C. § 134 from a
final rejection of claims 1, 7, and 10-12. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claimed subject matter relates to “pressurized water reactor fuel
assemblies that employ mixed oxide fuel.” See Spec., para. [0001]. Claim 1
represents the subject matter on appeal and is reproduced below.
1. A nuclear fuel assembly for a light water
reactor comprising a spaced array of a plurality of
MOX fuel rods arranged in rows and columns
wherein the spaced array of the plurality of fuel
rods is arranged in a radial enrichment zoning
pattern comprising at least three zones at each
radial position, an inner zone, an intermediate zone
and an outer zone, with the Pu weight percent
enrichment of the fuel rods within each zone being
substantially the same and the Pu weight percent
enrichment of the fuel rods between zones
decreasing as one moves radially outward from the
inner zone of the fuel assembly from one zone to
the next with the outer zone having all of the fuel
rods around the entire border of the fuel assembly,
in both outer columns and rows, of substantially
the same weight percent enrichment and the
intermediate zone having substantially more fuel
rods relative to the inner zone and the outer zone
respectively.
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EVIDENCE
The Examiner relies on the following evidence:

B. Roque et al., Specification for the Phase 2 of a Depletion Calculation
Benchmark devoted to MOx Fuel Cycles, (Nuclear Energy Agency Nuclear
Science Committee Working Party on Scientific Issues of Reactor Systems,
NEA/NSC/DOC(2007)9, 2007)

I.C. Gauld, MOx Cross-Section Libraries for ORIGEN-ARP, (Nuclear
Science and Technology Division (94), Oak Ridge National Laboratory,
ORNL/TM-200312, July, 2003

REJECTION
Claims 1, 7, and 10-12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Roque and Gauld. Ans. 4.
ANALYSIS
The Examiner finds that Roque teaches the subject matter of claim 1,
including a radial enrichment zoning pattern comprising at least three zones
at each radial position - an inner zone, an intermediate zone, and an outer
zone, the intermediate zone having more fuel rods than the outer zone. Ans.
4 (citing Roque, Fig. 1 and p. 13). The Examiner finds that Roque fails to
teach the intermediate zone having more fuel rods than the inner zone, but
finds that Gauld teaches an intermediate zone having more fuel rods than the
inner zone. Ans. 5 (citing Gauld, Figs. 11 and 12, pp. 35 and 35). The
Examiner concludes that it would have been obvious to one skilled in the art
at the time of the invention to construct Roque’s fuel assembly such that the
intermediate zone has the most fuel rods to avoid net neutron currents
between assemblies. Id.
Regarding claim 1, Appellant argues that Roque’s intermediate zone
does not have substantially more rods than its inner zone. App. Br. 4. The
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Application 12/198,287

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Examiner, however, does not rely on Roque for teaching an intermediate
zone having substantially more rods than an inner zone. Appellant also
argues that Gauld does not teach at least three zones of radial enrichment at
each radial position, or an outer zone including fuel rods around the entire
border of the fuel assembly. The Examiner, however, does not rely on
Gauld for teaching either of these limitations. One cannot show non-
obviousness by attacking references individually where the rejections are
based on combinations of references. See In re Keller, 642 F.2d 413 (CCPA
1981).
Appellant argues that the Examiner appears to be extracting an
isolated feature of Gauld, (i.e., a BWR fuel assembly with an intermediate
zone having a larger number of fuel rods than an inner zone) and applying
that isolated BWR assembly feature to Roque’s PWR assembly, without
considering that Roque’s assembly was designed with three zones
specifically configured with the different plutonium enrichments and
placements shown in its Figure 1 to flatten the within-assembly power
distribution and to attenuate fission discontinuities at the MOx-UOx
interface. App. Br. 5 (citing Roque, p. 3, para. 1). The Examiner responds
that the prior art does not indicate that the number of fuel rods in the
intermediate zone directly affects power distribution flattening or attenuation
of fission rate discontinuities at the MOx-UOx interface. Ans. 8. Because
Appellant provides no evidence that, or explanation why, the number of fuel
rods in the intermediate zone affects the power distribution flattening or
attenuation of fission rate discontinuities at the MOx-UOx interface, we are
not persuaded by Appellant’s argument.
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Appellant alleges that the Examiner’s analysis ignores the “very
different physics of a BWR core and . . . a PWR core that affects the fuel
assembly layout.” App. Br. 6. Appellant does not explain how the alleged
difference in core physics renders the Examiner’s rejection erroneous.
Appellant also argues that there is no teaching, suggestion, or inference of
how Gauld’s intermediate zone having more fuels rods than the inner and
outer zones could be employed within Roque’s fuel assembly. App. Br. 7.
The Examiner responds that one of ordinary skill in the art would
have been familiar with the structure and neutronics of BWRs and PWRs,
and would have taken their differences into account, and that increasing the
number of fuel rods in the intermediate zone would not render Roque’s
PWR inoperable or dangerous. Ans. 8. The Examiner again notes that, in
accordance with In re Keller, the test for obviousness is not whether the
features of a secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed invention must
be expressly suggested in anyone or all of the references. Rather, the test is
what the combined teachings of the references would have suggested to
those of ordinary skill in the art. Ans. 9.
Appellant argues that neither Roque nor Gauld states as an objective
“to avoid net neutron currents between assemblies,” which is the reasoning
the Examiner relies on for combining the teachings of Roque and Gauld, and
that the Examiner is relying on hindsight “to pick and choose a specific
feature from among the various elements of Gauld to overcome the
deficiencies of Roque when neither reference describes, teaches, or suggests
such a combination.” App. Br. 6-7. The Examiner responds that
Appellant’s recognition of another advantage that flows naturally from
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following the suggestion of the prior art cannot be the basis for patentability
when the differences would otherwise be obvious. Ans. 10 (citing Ex parte
Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). The Examiner also
responds that, as stated in the final Office Action dated February 10, 2011,
column 6, lines 30-35 of U.S. Patent No. 6,301,320 to Thomas supports the
Examiner’s reasoning that one skilled in the art would understand that
combining Roque and Gauld would avoid net neutron currents between
assemblies, and provides additional teaching, suggestion, and/or motivation
in the knowledge generally available to one of ordinary skill in the. Id.
Appellant does not challenge the Examiner’s stated reasoning as lacking a
rational underpinning, and we are not persuaded that it is based on hindsight.
Regarding claim 7, which recites a fuel assembly without any
burnable absorber, Appellant argues that Roque “teaches a fuel assembly
without any burnable absorber, but in a different combination of fuel
element, i.e., rod, enrichments,” that Gauld’s fuel assembly uses burnable
absorbers, and that there is no teaching, suggestion or inference of how the
fuel rods of different enrichments within Roque’s fuel assembly should be
rearranged to compensate for no central water channel or burnable absorber
rods, to obtain the same neutronics taught by Roque when the embodiment
of Roque is rearranged to apply more fuel rods of a mid-level enrichment in
the intermediate zone than appear in the outer zone and inner zone,
respectively. App. Br. 7-8. Appellant has not persuaded us that Roque’s
teaching of a fuel assembly without any burnable absorber would be
incapable of accommodating an intermediate zone having substantially more
fuel rods relative to the inner zone.
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Regarding claims 10 and 11, which recite the Pu weight/percent
enrichment in the zones and the number of fuel rods in each zone,
respectively, Appellant argues that the Examiner’s assertion that the
limitations are obvious and merely a product of routine experimentation is
unsubstantiated. The Examiner responds by referring to pages 3-5 of the
final Office Action dated February 10, 2011, in which the Examiner found
that the limitations were mere optimization of ranges as discussed in MPEP
2144.05, and that the result of adjusting the variables was predictable.
Appellant’s argument is conclusory and fails to allege that the limitations do
not fall under optimization of ranges, or that the result of adjusting the
variables is not predictable. We therefore are not persuaded by Appellant’s
arguments.
Appellant makes no separate argument regarding the patentability of
claim 12. For the reasons set forth above, we sustain the rejection of claims
1, 7, and 10-12 as unpatentable over Roque and Gauld.
DECISION
We AFFIRM the rejection of claims 1, 7, and 10-12 under 35 U.S.C.
§ 103(a) as unpatentable over Roque and Gauld.

AFFIRMED

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