Ex Parte Kuran et al

Patent Trial and Appeal Board

Jul 16, 2018

13885582 (P.T.A.B. Jul. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/885,582 07/24/2013
20988 7590 07/16/2018
NORTON ROSE FULBRIGHT CANADA LLP
1, Place Ville Marie
SUITE 2500
MONTREAL, QC H3B IRI
CANADA
FIRST NAMED INVENTOR
Sermet Kuran
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.
027813-9007-USOO 5701
EXAMINER
BURKE, SEAN P
ART UNIT PAPER NUMBER
3646
MAIL DATE DELIVERY MODE
07/16/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SERMET KURAN,
MUSTAPHA BOUBCHER,
CATHY COTTRELL, and
ERIC CARL ALMENDRA ARAUJO
Appeal2017-009473
Application 13/885,582
Technology Center 3600
Before MICHAEL L. HOELTER, NATHAN A. ENGELS, and
SEAN P. O'HANLON, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner's Final Rejection of claims 81-118. App. Br. 5. Claims 1-80
have been canceled. App. Br. 5. We have jurisdiction under 35 U.S.C.
§ 6(b ). For the reasons explained below, we do not find error in the
rejections. Accordingly, we AFFIRM.
Appeal2017-009473
Application 13/885,582
THE CLAIMED SUBJECT MATTER
The disclosed subject matter relates to fuel bundles for nuclear
reactors that "generate energy from a nuclear chain reaction." Spec. ,r 1.
Apparatus claims 81 and 118 are independent. Claim 81 is illustrative of the
claims on appeal and is reproduced below.
81. A fuel bundle for a nuclear reactor, the fuel bundle
compnsmg:
a plurality of fuel elements each including
a first fuel component of recycled uranium; and
a second fuel component of at least one of depleted
uranium and natural uranium blended with the first fuel
component,
wherein the blended first and second fuel components
have a first fissile content of less than 1.2 wt % of 235U, and
wherein the plurality of fuel elements, when burned by
the nuclear reactor, has a negative fuel temperature coefficient.
REFERENCES RELIED ON BY THE EXAMINER
Aoyama et al. us 5,202,085 Apr. 13, 1993
G.D. Del Cul et al., Analysis of the Reuse of Uranium Recovered from
the Reprocessing of Commercial LWR Spent Fuel, OAKRIDGE NATIONAL
LABORATORY (2009) ("Del Cul").
G. Horhoianu & I. Patrulescu, Technical feasibility of the use of RU-
43 fuel in CANDU-6 reactors of the Cernavoda NPP, 73 KERNTECHNIK
(2008) ("Horhoianu").
THE REJECTIONS ON APPEAL
Claims 81, 82, 84--86, 89--91, 94, 95, 100-102, 105-108, and 110-113
are rejected under 35 U.S.C. § 103(a) as unpatentable over Del Cul and
Horhoianu.
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Application 13/885,582
Claims 83, 87, 88, 92, 93, 96-99, 103, 104, 109, and 114--118 are
rejected under 35 U.S.C. § 103(a) as unpatentable over Del Cul, Horhoianu,
and Aoyama.
ANALYSIS
The rejection of claims 81, 82, 84-86, 89--91, 94, 95, 100-102, 105-108,
and 110-113 as unpatentable over Del Cul and Horhoianu
Appellants only address limitations recited in independent claim 81.
See App. Br. 7. We select claim 81 for review, with the remaining claims
standing or falling with claim 81. 37 C.F.R. § 4I.37(c)(l)(iv).
Claim 81 recites a blend of first and second fuel components, and
Appellants contend that the teachings of Del Cul and Horhoianu fail to teach
this blend. 1 App. Br. 8-9. More particularly, claim 81 recites "a first fuel
component of recycled uranium" and "a second fuel component of at least
one of depleted uranium and natural uranium blended with the first fuel
1 The Examiner states, "Appellant[s'] Specification defines 'blend' as 'used
in conjunction with,"' which, according to the Examiner, gives this term
"breadth." Ans. 7. Appellants disagree that the Specification contains such
a "definition." Reply Br. 2. To be clear, Appellants' Specification states
that various fuels "can be used (e.g., blended) in conjunction within one or
more other materials." Spec. ,r 20. Even assuming Appellants'
Specification did not formally "define" this term (see Reply Br. 2-3), the
meaning and scope of this term has been applied by the Examiner consistent
with how one skilled in the art would have understood this term upon a
review of Appellants' Specification.
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Application 13/885,582
component. "2 The Examiner relies on the teaching of Del Cul for disclosing
these limitations. 3 Final Act. 6.
Appellants contend that the Examiner's reliance on Del Cul for
blending RU with at least one of DU and NU is misplaced because,
according to Appellants, "[ t ]he Examiner alleges that claim 81 is
unpatentable because 'the Del Cul proposal centers on a CANDU reactor."'
App. Br. 8 (referencing Final Act. 3). According to Appellants, this reliance
by the Examiner on a CANDU reactor renders the rejection faulty because if
the Examiner is relying on the portion of Del Cul that teaches the use of a
CANDU reactor, "the Examiner is constrained by the fact that Del Cul's
applicability to a CANDU reactor is limited to direct use of RU," and not
use of a blend of RU with other fuel. App. Br. 8.
Appellants are correct that Del Cul discusses the reuse of recovered
uranium "(1) by reenrichment and recycling as fuel to LWRs and/or (2) by
recycling directly as fuel to heavy-water-reactors (HWRs), such as the
CANDU" reactor. Del Cul URO 13. 4 Hence, there is some merit for
Appellants' assertion that a CANDU reactor pertains to directly recycled
fuel as contrasted with fuel that has been both recycled and reenriched.
However, claim 81 is not restricted to any one type of reactor because claim
81 simply recites "[a] fuel bundle for a nuclear reactor." See Ans. 6.
Further, the Examiner's reference to "a CANDU reactor" was made with
2 Appellants abbreviate "reprocessed or recycled uranium," "depleted
uranium " and "natural uranium" as respectively "RU " "DU " and "NU " ' ' ' ' ' .
Spec. ,r 21. We do the same.
3 The Examiner relies on the teachings of Horhoianu for disclosing the
recited "fissile content" or enrichment percentage. Final Act. 6; Ans. 11.
4 Del Cul lacks line or paragraph numbering; hence reference will be made
to page number only.
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Application 13/885,582
regard to fuel bundles having a "negative fuel temperature coefficient" ( a
different limitation) and such reference by the Examiner was not made so as
to restrict the teachings of Del Cul and/or claim 81 to only CANDU reactors.
See Final Act. 3; Ans. 6.
Furthermore, Del Cul acknowledges scenarios in which "only RU is
fed (i.e., no natural uranium)", but Del Cul states, "[i]n the scenarios
presented here, we do not consider all-RU enrichment." Del Cul UR014. In
fact, all-RU enrichment generally requires a large increase in 235U due to "a
so-called 236U" penalty. Del Cul UR014. However, Del Cul states that the
scenarios considered in its analysis only require "an additional 0.05 to 0.15
wt% 235U (e.g., 4.55 vs 4.5 wt%)." Del Cul UR014. Thus, Appellants'
assertion that the Examiner improperly relied on the teachings of Del Cul,
premised on direct recycling of RU in CANDU reactors, is not persuasive.
Additionally, the Examiner's referenced portion of Del Cul (i.e., "Del
Cul, p. UR014, ,r 1," (Final Act. 6)) comes under the heading "Reenrichment
Option." This referenced passage states, "[i]n the defined RU-reuse
scenario, the RU is fed along with sufficient natural uranium to produce the
required amount of product to feed the next reactor pass." Del Cul UR014.
Appellants contend, "Del Cul was aware of the concept of nuclear material
blending" but that Del Cul did not use the word "blending." Reply Br. 3.
Instead, Del Cul used the term "fed," and hence, Del Cul does not teach the
limitation pertaining to "blending." Reply Br. 3. Appellants' semantic
distinction is not persuasive that Del Cul fails to teach using RU in
conjunction with NU, at least because Del Cul expressly describes examples
of "down-blending the RU feed with natural uranium feed" if the 236U
content of the RU feed exceeds the feed limit. Del Cul UR029. Thus,
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Application 13/885,582
Appellants are not persuasive that Del Cul's "fed along" disclosure fails to
teach the limitation of a first fuel component (i.e., RU) and a second fuel
component (i.e., at least one of DU and NU) being blended together with the
first fuel component.
Appellants further contend that being fed together is not the same as
being blended together, stating, "Del Cul is entirely silent as to whether the
recycled uranium and natural uranium are confined to separate bundles or
are in the same bundle." App. Br. 8. More particularly, "Del Cul is silent as
to the particular manner in which these separate fuels are 'fed' into or
otherwise located within a reactor of any type." App. Br. 8. Appellants'
understanding of Del Cul is not consistent with Del Cul's teachings
regarding such nuclear fuel. This is because Del Cul addresses the
enrichment of nuclear fuel and such enrichment involves a mixing of
different fuels together to achieve a desired level of enrichment. See Del
Cul URO 14, UR025 ("RU was used as additional feed into a uranium
enrichment plant. Additional natural feed was also fed into the enrichment
plant . . . . The enriched product was then used for a second reactor pass
.... "); see also Ans. 7 ("it is impossible to see how 'feeding' a constituent
to produce an enriched uranium product does not fall under the umbrella of
'blending"'). Appellants do not explain how such enrichment can be
achieved if the different fuel components are, instead, kept separate from
each other. See Ans. 8.
Regarding the Examiner's reliance on Horhoianu, Appellants contend
that Horhoianu teaches "a single fuel component" and not a blend. App. Br.
9; see also App. Br. 10. Hence, "Del Cul expressly teaches away from
modifying the fuel disclosed therein [i.e., Del Cul] based upon a teaching of
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Application 13/885,582
an RU-only fuel [i.e., Horhoianu]." App. Br. 9. Notably, this argument by
Appellants appear to underscore the understanding that Del Cul addresses
fuel blends. Appellants' contention is also not persuasive because, first, Del
Cul was relied on for teaching a blended fuel, not Horhoianu. Final Act. 6.
Second, Horhoianu was relied on for teaching regarding the "fissile content"
or enrichment percentage of fuel, as cited. Final Act. 6; Ans. 11. Hence,
Appellants' focus on Horhoianu's fuel, instead of its teachings regarding
fissile content, is not persuasive of Examiner error. Third, we are instructed
that simply because there are differences between two references, this is
insufficient to establish that such references "teach away" from any
combination thereof. See In re Beattie, 974 F.2d 1309, 1312-13 (Fed. Cir.
1992).
Regarding the limitation directed to "a negative fuel temperature
coefficient," the Examiner states, "this is an inherent quality of any low-
enriched nuclear reactor." Final Act. 6 (citing a reference (n.4) stating "[i]n
power reactors, in which low enriched fuel ( e.g. PWRs and BWRs require
3% - 5% of 235U) is used, the Doppler coefficient is always negative");
Ans. 11-12. Appellants address this citation stating, "Appellant[s'] claim,
however, does not recite a fissile content of 3-5% but rather a fissile content
of 1.2% or less." App. Br. 11. On this point, since it is acknowledged that if
a low enriched fuel of 3-5% "is always negative," Appellants are not
persuasive that an even lower enriched fuel of 1.2% or less would fail to
follow suit. Instead, Appellants contend that the sign and magnitude "of the
fuel temperature coefficient is primarily a function of the fuel composition."
App. Br. 11; see also Reply Br. 5. This is not disputed; however, it is clear
that low enriched fuel of 3-5% "is always negative" and as such,
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Application 13/885,582
Appellants' contention that the Examiner's reliance on such teachings in
support of an inherency finding involving an even lower percentage, is not
persuasive of Examiner error. In short, the Examiner's recitation to
additional references that buttress or support findings made by the Examiner
(see, e.g., Final Act. 3, 6; Ans. 3, 11-12) is not considered to be error as
Appellants argue. See Reply Br. 4--7.
Accordingly, and based on the record presented, we sustain the
Examiner's rejection of claims 81, 82, 84--86, 89-91, 94, 95, 100-102, 105-
108, and 110-113 as being unpatentable over Del Cul and Horhoianu.
The rejection of claims 83, 87, 88, 92, 93, 96-99, 103, 104, 109, and 114-
118 as being unpatentable over Del Cul, Horhoianu, and Aoyama
Appellants argue claims 83, 87, 88, 92, 93, 96-99, 103, 104, 109, and
114--118 together. App. Br. 11-12. We select independent claim 118 for
review, with the remaining claims standing or falling therewith.
Claim 118 differs from above claim 81 in that, unlike claim 81, which
recites a second fuel component of "at least one of' DU and NU, claim 118
instead recites a second fuel component "of depleted uranium and natural
uranium." App. Br. 20 (Claims App'x). The Examiner relies on the
teachings of Aoyama for this. 5 Final Act. 19-20. Appellants focus on
language found in the Advisory Action where the Examiner is explaining
that this language "means that the fuel ... materials [are] 'necessarily
blended together."' App. Br. 11 (referencing Advisory Action dated
November 23, 2016); see also Reply Br. 4. Appellants, thus, contend that
5 The referenced portion of Aoyama states, "[t]he short length fuel rod 13 is
a low enriched fuel rod containing low enriched uranium having a large
percentage ofuranium-238 such as natural uranium, depleted uranium, and
reprocessed uranium as fuel materials." Aoyama 7:12-16.
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Application 13/885,582
this understanding of Aoyama "is incorrect." App. Br. 11. We agree that
this "necessarily" language found in the Advisory Action is incorrect since a
more proper reading of Aoyama is that the uranium 23 8 can be obtained
from sources "such as" NU, DU, and RU, and not "necessarily" from all
three (although that possibility is one option disclosed). The Examiner, in
the Examiner's Answer, addresses this point, stating,
[ t ]he Appellant[ s] may argue that the use of "such as" implies
that the elements were intended to be interpreted individually.
[See App. Br. 11.] However, it is just as likely that Aoyama
was describing a single element ("low enriched uranium") made
from a blend of three known quantities (natural, depleted, and
reprocessed).
Ans. 13. We agree with the Examiner's assessment of this language in
Aoyama, i.e., Aoyama discloses a blend employing uranium 238 from
multiple sources (but Aoyama is not restricted to only a blend from all three
sources).
Accordingly, and based on the record presented, we sustain the
Examiner's rejection of claims 83, 87, 88, 92, 93, 96-99, 103, 104, 109, and
114--118 as being unpatentable over Del Cul, Horhoianu, and Aoyama.
DECISION
The Examiner's rejections of claims 81-118 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended as set forth in 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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