GE-Hitachi Nuclear Energy Americas LLC

Patent Trials and Appeals Board

Sep 27, 2021

2021000469 (P.T.A.B. Sep. 27, 2021)

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.
15/178,020 06/09/2016 Eric Paul Loewen 8564-000346-US 8378
33727 7590 09/27/2021
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 8910
RESTON, VA 20195
EXAMINER
GARNER, LILY CRABTREE
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
09/27/2021 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):
dcmailroom@hdp.com
jhill@hdp.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ERIC PAUL LOEWEN and HANYING LIU

Appeal 2021-000469
Application 15/178,020
Technology Center 3600
____________

Before JOSEPH A. FISCHETTI, MICHAEL C. ASTORINO, and
NINA L. MEDLOCK, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 11, 13–15, and 23.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as “GE-
Hitachi Nuclear Energy Americas LLC, which is an alliance between the
General Electric Company and Hitachi, Ltd.” Appeal Br. 1.
2 Claims 1–10, 12, 16–22, 25, and 26 are cancelled and claim 24 is
withdrawn from consideration. Appeal Br., Claims App.; see Advisory Act.
(mailed Aug. 12, 2019); Advisory Act. (mailed Aug. 29, 2019).
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STATEMENT OF THE CASE
Claimed Subject Matter
Claim 11, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below.
11. An apparatus, comprising:
a flowmeter assembly configured to be coupled to at least
one surface such that the flowmeter assembly is exposed to at
least one first portion of a flow channel, the flowmeter
assembly being configured to monitor a flow of a coolant fluid
in the at least one first portion of the flow channel, the
flowmeter assembly including,
a first temperature sensor configured to generate
first temperature data based on measuring a first
temperature of a first flowstream of the coolant fluid in
the at least one first portion of the flow channel;
a heating element directly coupled to the first
temperature sensor at an interface of the first temperature
sensor such that the heating element is configured to
apply heat to the first temperature sensor through the
interface; and
a second temperature sensor configured to generate
second temperature data based on measuring a second
temperature of a second flowstream of the coolant fluid
in the at least one first portion of the flow channel, the
second temperature sensor spaced apart from the heating
element, the second temperature sensor being at least
partially insulated from the heating element.
Appeal Br., Claims App.
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References
The prior art relied upon by the Examiner is:
Name Reference Date
Sherman et al.
(“Sherman”)
US 3,158,543 Nov. 24, 1964
Bevilacqua et al.
(“Bevilacqua”)
US 4,440,717 Apr. 3, 1984
Kirkpatrick US 5,559,293 Sept. 24, 1996
Niedzballa US 8,616,053 B2 Dec. 31, 2013
Okawa3 JP2008082966A Apr. 10, 2008

Rejections4
Claims 11 and 13–15 are rejected under 35 U.S.C. § 103 as
unpatentable over Niedzballa and Okawa. Final Act. 7–11.
Claim 13 is rejected under 35 U.S.C. § 103 as unpatentable over
Niedzballa, Okawa, and Bevilacqua. Final Act. 15–17.
Claim 23 is rejected under 35 U.S.C. § 103 as unpatentable over
Niedzballa, Okawa, Kirkpatrick, and Sherman. Final Act. 13–15.

3 The reference to Okawa is an English translation of a foreign reference,
which is referred to by the Examiner and the Appellant as “JP966.”
4 After the Final Office Action, the Examiner entered the Appellant’s
amendments cancelling claims 12 and 16 and withdrew the rejection under
35 U.S.C. § 112(b). See Advisory Act. (mailed Aug. 12, 2019) (“[T]he only
remaining rejections of record are the 103 rejections, which are maintained
for purposes of appeal.”); Advisory Act. (mailed Aug. 29, 2019); see also
Final Act. 5–6, 11–13.
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ANALYSIS
The Examiner finds Niedzballa teaches the following recitation of
independent claim 11:
a flowmeter assembly configured to be coupled to at least
one surface such that the flowmeter assembly is exposed to at
least one first portion of a flow channel, the flowmeter
assembly being configured to monitor a flow of a coolant fluid
in the at least one first portion of the flow channel.
See Final Act. 7. Specifically, the Examiner finds:
a flowmeter assembly (2) configured to be coupled to at
least one surface (8) such that the flowmeter assembly is
exposed to at least one first portion of a flow channel, the
flowmeter assembly being configured to monitor a flow of a
coolant fluid in the at least one first portion of the flow channel
(flow F inside pressure vessel 4: “cooling liquid F continuously
flows into the reactor pressure vessel,” col. 12, ll. 29-30).
Final Act. 7 (emphasis omitted).
The Appellant argues that Niedzballa fails to teach “a flowmeter
assembly being configured to monitor a flow of a coolant fluid,” as recited
in claim 11, because Niedzballa’s liquid level monitor 2 only measures the
level (i.e., elevation) of fluid of a tank and does not measure the flow of
fluid entering and/or exiting the tank. See Appeal Br. 7; Reply Br. 2–3. The
Appellant’s argument is not persuasive.
The Appellant’s argument is not commensurate with the scope of
claim 11. The claimed “flowmeter assembly” is “configured to monitor a
flow of a coolant fluid.” The claimed “flowmeter assembly” is not
configured to measure a flow of a coolant fluid or fluid entering and/or
exiting the tank. Additionally, we note the structure of the claimed
“flowmeter assembly” includes, broadly, two temperature sensors and a
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heating element. The claimed “flowmeter assembly” does not include a
structure that measures a flow of a coolant fluid.
The Specification supports this understanding of the claim. The
Specification instructs one of ordinary skill in the art that “the flowmeter
assembly [is] configured to monitor a flow of a coolant fluid in the at least
one first portion of the flow channel” because temperature sensors are
configured to generate temperature data in a portion of the flow channel
where coolant fluid flows. For example, the Specification describes “[t]he
given flowmeter assembly of flowmeter assemblies 132-1 to 132-N therefore
may be configured to generate temperature data based on monitoring the one
or more flowstreams of coolant fluid 122 flowing through the at least one
portion of the downcomer flow channel 112.” Spec. ¶ 67. The Specification
describes that the temperature data generated by the temperature sensors of
the flowmeter assembly may be processed to determine flow rate, phase of
fluid, and coolant fluid liquid level in at least one portion of the downcomer
flow channel. See Spec. ¶¶ 66, 68. The ability to generate temperature data
in a flow channel does not equate to the ability to process the generated
temperature data to measure flow of coolant fluid in a flow channel.
Additionally, the Specification describes that the processing of the generated
temperature data from the flowmeter assemblies may be performed by
control system 140 to determine flow rate, phase of fluid, and coolant fluid
liquid level in at least one portion of the downcomer flow channel. See
Spec. ¶ 70; see also Spec. Fig. 1 (showing flowmeter assemblies 132-1 to
132-N as separate elements from control system 140). In other words, the
element of the Appellant’s invention that may be said to be able to
measure/calculate a flow of a coolant fluid in the at least one first portion of
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the flow channel is control unit 140, not flowmeter assemblies 132-1 to
132-N.
Turning to the Examiner’s rejection, we determine that the
Examiner’s finding that Niedzballa teaches “the flowmeter assembly being
configured to monitor a flow of a coolant fluid in the at least one first
portion of the flow channel,” as recited in claim 11, is adequately supported.
See Final Act. 7–8; Ans. 12. Niedzballa’s device 2 includes temperature
sensors (i.e., thermocouples) that are configured to generate temperature
data in a portion of pressure vessel 4 where cooling liquid F flows and
provide that data to electronic control and evaluation unit 18. See
Niedzballa Abstract, col. 10, l. 62–col. 11, l. 67, Fig. 1.
The Appellant argues that the combined teachings of Niedzballa and
Okawa fails to teach the following recitation of claim 11:
a heating element directly coupled to the first
temperature sensor at an interface of the first temperature
sensor such that the heating element is configured to apply heat
to the first temperature sensor through the interface.
Appeal Br. 8–11.
The Appellant contends that “modifying Niedzballa so that the heater
HE2 is directly coupled to the thermocouple HT5 at an interface, as opposed
to the heater HE2 running through the thermocouple HT5, would make
Niedzballa inoperable for its intended purpose, and destroy the purpose and
intent of Niedzballa.” Appeal Br. 10; Reply Br. 4. The Appellant contends
the “it would be counterproductive to separate the heater HE2 and
thermocouple HT5 so that they only contact each other at an interface, rather
than having the heater HE2 run through the middle of the thermocouple
HT5.” Appeal Br. 10. The Appellant’s contention is not persuasive.
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As the Examiner explains, the rejection does not rely on a
modification of Niedzballa’s thermocouple HT5 or heating element HE2.
The Examiner’s rejection relies on Niedzballa’s teaching of heated
thermocouple “HT1 in tube 1”, “heater HE1 inside tube 1”, and unheated
thermocouple “UHT3 . . . inside tube 2” as corresponding to the claimed
“first temperature sensor,” “heating element,” and “second temperature
sensor,” respectively. Final Act. 7–8 (emphasis omitted). The Examiner
finds “Niedzballa does not explicitly teach that the heating element [HE1] is
directly coupled to the first temperature sensor [HT1].” Final Act. 8. The
Examiner relies on Okawa’s teaching of heater 29 being directly coupled to
thermocouple 28 to modify the relationship between Niedzballa’s heater
HE1 and heated thermocouple HT1 to modify Niedzballa’s teachings. See
Final Act. 8–9.
The Appellant points out that Niedzballa and Okawa teach “seemingly
almost identical arrangements” in that a heater that runs through a heated
thermocouple. Appeal Br. 11; see Reply Br. 4–5, 7–8. The Appellant’s
position is that in Niedzballa’s heater HE2 runs through thermocouple HT5
and Okawa’s heater 29 runs through gamma thermometer 14. Appeal
Br. 11. We agree with the Appellant’s understanding of Niedzballa’s and
Okawa’s teachings.
The Appellant, however, fails to persuasively explain how a heater
running through a thermocouple/thermometer as described in Niedzballa and
Okawa is not directly coupled at an interface. For example, in Okawa there
are no intervening elements or layers present between heater 29 and
thermocouple 28. See Okawa Figs. 1–2; Spec. ¶ 35 (“when an element is
referred to as being . . . ‘directly coupled to’ another element or layer, there
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are no intervening elements or layers present.”). The interface in Okawa is
exhibited by the direct contact between heater 29 and thermocouple 28. See
Ans. 14; Okawa Figs. 1–2. Accordingly, the Appellant fails to apprise us of
error in the Examiner’s finding that Okawa teaches that heater 29 is directly
coupled to thermocouple 28 at an interface of thermocouple 28 such that
heater 29 is configured to apply heat to thermocouple 28 through the
interface. See Final Act. 8–9.
We appreciate that the Examiner’s understanding of Niedzballa’s
apparatus differs somewhat from the Appellant’s understanding and our
own. For example, the Examiner determines that “[i]n Niedzballa, the
heater HE1 and sensor HT1 are separated by a thermally conductive
housing 12.” Ans. 12. As discussed above, we disagree with the
Examiner’s finding. Niedzballa describes both heated thermocouple HT1
and heater HE1 as being contained inside interior 14 of measurement tube 1.
Niedzballa col. 11, ll. 21–26, 31–38. Niedzballa also describes that heated
thermocouple HT1 and heater HE1 both bear directly against the internal
wall of housing 12, which is within measurement tube 1. See Niedzballa
col. 11, ll. 39–42, Fig. 1. In this case, the Examiner’s misunderstanding is a
harmless one at least because, as admitted by the Appellant, Niedzballa and
Okawa teach “seemingly almost identical arrangements” in that a heater runs
through a heated thermocouple.
The Appellant offers a technical discussion of how Niedzballa
measures the fluid level; namely, by comparing temperature measures at the
same, rather than different, elevations. Reply Br. 5; see Appeal Br. 8–10;
Reply Br. 6–7. The Appellant contends that because the Examiner’s
rejection relies on comparing temperature data generated by thermocouples
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at different elevations, Niedzballa is rendered inoperable for its intended
purpose. See Reply Br. 6–7. The Appellant’s contention is not persuasive.
As discussed above, claim 11 does not call for a flowmeter assembly
to measure flow of a coolant fluid or fluid level. Generally, the elements of
the claimed “flowmeter assembly” includes two temperature sensors and a
heating element. And, as described in the Specification, the elements of the
flowmeter assembly are used to generate temperature data that a control unit
processes to determine a flow of a coolant fluid. See Spec. ¶ 70. Therefore,
the claim calls for the generation of temperature data in a flow channel,
which Niedzballa teaches by sending temperature data from all of its
thermocouples to electronic control and evaluation unit 18.
The Appellant argues that Niedzballa and Okawa fail to teach “the
second temperature sensor being at least partially insulated from the heating
element,” as recited in claim 11. Appeal Br. 11; see Appeal Br. 8. The
Appellant’s argument is based on the relationship between Niedzballa’s
unheated thermocouple UHT5 of tube 2 and being able to receive emitted
heat from heated thermocouple HT5 and heater HE2 of tube 3. Appeal
Br. 3. As discussed above, and pointed out by the Examiner, the rejection of
claim 11 does not rely on Niedzballa’s unheated thermocouple UHT5 to
correspond to the claimed “second temperature sensor” or heater HE2 to
correspond to the claimed “heating element.” Ans. 14; see Final Act. 8. The
Examiner relies on Niedzballa’s unheated thermocouple UHT3 to
correspond to the claimed “second temperature sensor” and heater HE1 to
correspond to the claimed “heating element.” Final Act. 7–8; Ans. 14.
Additionally, the Appellant contends that in order for Niedzballa’s liquid
level monitor to function properly, during times when the unheated and
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heated thermocouples are covered in cooling fluid F, the unheated
thermocouples must be able to receive heat emitted from a heater. Appeal
Br. 11. In other words, the Appellant argues that if Niedzballa’s unheated
thermocouple is at least partially insulated from the heater, then Niedzballa’s
liquid level monitor would not function properly. See Appeal Br. 11. The
Appellant’s argument is not persuasive.
The Specification describes that in some situations at least partial
insulation occurs by use of a spacing between the temperature sensor and
heating element and the cooling fluid:
In some example embodiments, the insulating material
430/430a is absent and the second temperature sensor 422 is at
least partially insulated from the heating element 416 based on
a spacing of the second temperature sensor 422 from the
heating element 416 such that coolant fluid flowing between
the first and second sensor assemblies 410 and 420 at least
partially insulates the second temperature sensor 422 from the
heating element 416.
Spec. ¶ 95 (underlining in original, italics added) (amended April 18, 2019).
Niedzballa’s apparatus has spacing and coolant fluid F between unheated
thermocouple UHT3 and HE1. See Niedzballa Fig. 1. Therefore, there is
adequate support for the Examiner’s finding that Niedzballa’s unheated
thermocouple UHT3 is at least partially insulated from heater HE1.
Moreover, the Appellant’s argument fails to explain why Niedzballa’s
unheated thermocouples (e.g., UHT3) are not at least partially insulated from
the heaters (e.g., HE1) when the unheated and heated thermocouples are
surrounded by vapor D, i.e., not covered in cooling fluid F. See Niedzballa
Fig. 1.
Thus, we sustain the Examiner’s rejection of independent claim 11
under 35 U.S.C. § 103 as unpatentable over Niedzballa and Okawa. The
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11

Appellant does not separately argue the Examiner’s rejection of dependent
claims 13–15 under the same ground of rejection. See Appeal Br. 11–25.
Dependent claims 13–15 fall with independent claim 11. See 37 C.F.R.
§ 41.37(c)(1)(iv).
The Appellant includes a separate heading for the remaining grounds
of rejection on Appeal.5 See Appeal Br. 12. The Appellant asserts that the
teachings of Kirkpatrick and Sherman, and Bevilacqua fail to remedy the
deficiencies in the rejection of claim 11 under 35 U.S.C. § 103 as
unpatentable over Niedzballa and Okawa. See Appeal Br. 12. As discussed
above, the Appellant does not persuade us that the Examiner erred in
rejecting claim 11. Accordingly, we determine that the Appellant’s assertion
is not persuasive. Thus, we sustain the Examiner’s rejections of: claim 13
under 35 U.S.C. § 103 as unpatentable over Niedzballa, Okawa, and
Bevilacqua; and claim 23 under 35 U.S.C. § 103 as unpatentable over
Niedzballa, Okawa, Kirkpatrick, and Sherman.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
11, 13–15 103 Niedzballa, Okawa 11, 13–15

13 103 Niedzballa, Okawa,
Bevilacqua
13
23 103 Niedzballa, Okawa,
Kirkpatrick, Sherman
23

5 The Examiner’s rejection of claim 16 under 35 U.S.C. § 103 is moot
because claim 16 is canceled.
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12

Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
Overall
Outcome
11, 13–15,
23

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