Ex Parte Russell et al

Patent Trial and Appeal Board

Oct 15, 2012

11581620 (P.T.A.B. Oct. 15, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte WILLIAM EARL RUSSELL, II and ROBERT HAUGHTON
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Appeal 2010-009327
Application 11/581,620
Technology Center 3600
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Before EDWARD A. BROWN, MICHELLE R. OSINSKI, and
SCOTT E. KAMHOLZ, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-009327
Application 11/581,620

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STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-10 and 15-29. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The application pertains to “fuel rods and fuel assemblies for a
nuclear reactor core.” See Spec. 1, para. [0001]. Claims 1, 15, and 27 are
the independent claims on appeal. Claim 1 is representative of the claimed
subject matter and is reproduced below:
1. A fuel rod for a nuclear reactor having
a bottom end, a top end, and an intermediate
region located between the bottom end and the top
end, comprising:
a first axial zone positioned proximate to the
bottom end;
a second axial zone positioned adjacent to
the first axial zone in the intermediate region; and
a third axial zone positioned proximate to
the top end,
wherein the first axial zone has an
enrichment greater than the second axial zone and
the second axial zone has an enrichment greater
than or equal to the third axial zone, the third axial
zone having an enrichment greater than that of
natural uranium.

REJECTIONS
Appellants seek review of the following rejections:

(1) Claims 1, 2, 15, and 16 under 35 U.S.C. § 103(a) as unpatentable
over Nagano (US 5,249,211, iss. Sep. 28, 1993). Subsequent Ans. 1-3.2

1 Appellants identify the real party in interest as Global Nuclear Fuel-
Americas, LLC. App. Br. 2.
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(2) Claims 3-10 and 18-26 under § 103(a) as unpatentable over
Nagano and Haikawa (US 5,544,211, iss. Aug. 6, 1996). Ans. 3-15.
(3) Claim 17 under § 103(a) as unpatentable over Nagano and
Haikawa. Subsequent Ans. 3.
(4) Claims 27-29 under § 103(a) as unpatentable over Haikawa and
Nagano. Ans. 15-18.

ANALYSIS
Claims 1, 2, 15, and 16
Only issues and findings of fact contested by Appellants in the Briefs
will be addressed. See Ex parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI
2010). Appellants argue the patentability of claims 1, 2, 15, and 16 as a
group. App. Br. 14-19. We select claim 1 as representative. See 37 C.F.R.
§ 41.37(c)(1)(vii)(2011).
The Examiner found that Nagano discloses a fuel rod 4 having a first
axial zone (zone with enrichment of 3.4) positioned proximate to a bottom
end of the fuel rod. Subsequent Ans. 1 (citing FIG. 1B). The Examiner also
found that Nagano discloses a second axial zone (lower part of zone with
enrichment of 3.0), wherein the first axial zone has an enrichment greater
than the second axial zone. Id. The Examiner also found that Nagano
discloses a third axial zone (upper part of zone with enrichment of 3.0),
wherein the second axial zone has an enrichment greater than or equal to the
third axial zone. Id. In particular, the Examiner found that the second axial

2 The ground of rejection of claims 1, 2, and 15-17 was inadvertently
excluded from the Examiner’s Answer (Ans.) mailed Mar. 31, 2010. A
Subsequent Answer (Subsequent Ans.) was mailed Apr. 29, 2010.
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zone has an enrichment equal to the third axial zone “with[in] an accuracy of
enrichment determination.” Subsequent Ans. 1. The Examiner found that
the third axial zone “ha[s] an enrichment greater than that of natural uranium
. . . .” Id.
Appellants contend that “the enrichment area of fuel rod 4 identified
as ‘3.0’ must be considered a single zone because the area is ‘uniformly
equal.’” App. Br. 17 (citing Nagano, col. 10, ll. 33-34). Appellants further
contend that the zone of enrichment of 3.0 in fuel rod 4 in FIG. 1B cannot
“just be arbitrarily divided into two zones.” App. Br. 18. Appellants assert
instead that “zones” must be “distinguished based on enrichment and/or
gadolinium concentration” if the claim is properly interpreted in light of the
specification. Reply Br. 6 (citing Spec., figs. 6, 8). These contentions are
not persuasive.
Claim 1 recites that “the second axial zone has an enrichment greater
than or equal to the third axial zone” (emphasis added). The plain language
of the claim itself does not require the second and third axial zones be
distinguished from each other by having different respective enrichments.
Rather, the Examiner correctly determined that the claimed second and third
axial zones can have the same enrichment. Accordingly, to the extent that
Appellants contend the claim term “zone” should be interpreted as requiring
the second and third axial zones to have different enrichments from each
other, this construction is inconsistent with the claim language itself.
Appellants do not dispute the Examiner's finding that the regions of
Nagano's fuel rod identified by the Examiner as the “second axial zone” and
“third axial zone” have equal enrichments. Rather, Appellants contend that
these two regions are only one “zone.” The Examiner determined that the
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claimed “zones” may be distinguishable from each other based on
height/location/position within a fuel rod, for example. Ans. 19. As such,
the Examiner construed the claim term “zone” more broadly than Appellants
have urged. Appellants do not direct us to a formal definition of the term
“zone” in the Specification. If the specification does not assign or suggest a
specific definition to a claim term, it is appropriate to consult a general
dictionary definition of the term for guidance in determining its ordinary and
customary meaning to one having ordinary skill in the art. See Comaper
Corp. v. Antec., Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010). The Examiner
determined that an ordinary meaning of the term “zone” is broad enough to
encompass regions or areas based on distinctions in height, location, and/or
position. See Ans. 19 (defining “zone” as “a region or area set off as distinct
from surrounding or adjoining parts” (citing MERRIAM-WEBSTER ONLINE
DICTIONARY, http://www.merriam-webster.com/dictionary/zone)).
Appellants do not identify any disclosure in the Specification inconsistent
with this ordinary meaning.
Appellants have not persuasively argued why Nagano fails to disclose
first, second, and third axial “zones” in accordance with the ordinary
meaning of the term “zone.” In this regard, Nagano's first, second, and third
axial zones as identified by the Examiner each have an enrichment. See
Subsequent Ans. 1; Nagano, fig. 1B. The first axial zone is distinct from the
adjoining second axial zone in both axial location and enrichment, and the
first axial zone has an enrichment greater than the second axial zone. Id.
The third axial zone is distinct from the adjoining second axial zone in at
least axial location, and the second axial zone has an enrichment equal to the
third axial zone. Id. For the foregoing reasons, we determine that Nagano
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discloses each of the limitations recited in claim 1, and thus anticipates the
claimed fuel rod. Hence, we agree with the Examiner that Nagano renders
the claimed fuel rod unpatentable. See In re Fracalossi, 681 F.2d 792, 794
(CCPA 1982) (A disclosure that anticipates under 35 U.S.C. § 102 also
renders the claim unpatentable under 35 U.S.C. § 103, for anticipation is the
epitome of obviousness.) We sustain the rejection of claims 1, 2, 15, and 16
under § 103(a).

Claims 3-10 and 17-29
Appellants rely on the same purported deficiencies in Nagano
discussed supra as the basis for reversing each of (i) the rejection of
dependent claims 3-10 and 18-26 under § 103(a) (App. Br. 20); (ii) the
rejection of dependent claim 17 under § 103(a) (App. Br. 19); and (iii) the
rejection of claims 27-29 under § 103(a) (App. Br. 20-23) . These
arguments are unavailing to overcome these obviousness rejections for
reasons similar to the reasons provided supra with respect to claim 1. As
such, we also sustain the Examiner’s rejections of these claims.

DECISION
The Examiner’s rejection of claims 1-10 and 15-29 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) .

AFFIRMED

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