NUCLEAR MATERIAL AND METHODS

§102 §112

/DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Election/Restrictions Applicant’s election of Species A1 (FIG. 1A), B6 (adjuvant ion implanted in fuel), B6a (adjuvant material evenly distributed), and C (isotopes of Gd) in the reply filed on 09/14/2026 is acknowledged. Because Applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse. See MPEP 818.01(a). Claims 24, 29-32, 36, and 39-42 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Status of Claims Claims 21-42 are pending in the application with claims 24, 29-32, 36, and 39-42 withdrawn. Claims 21-23, 25-28, 33-35, and 37-38 are examined herein. Drawings The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “consumable absorber” in claims 28 and 38 must be shown or the features canceled from the claims. No new matter should be entered. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the Applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance. Claim Objections Claim 33 is objected to because of the following informalities: “of the plurality” should be amended to recite “of the plurality of nuclear fuel pellets”. Appropriate correction is required. Claim Rejections - 35 USC § 112(b) The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. Claims 21-23, 25-28, 33-35, and 37-38 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. Claims 21 and 33 are indefinite because it is unclear the scope encompassed by the term “nuclear adjuvant material.” The meaning of every term used in a claim should be apparent from the prior art or from the specification and drawings at the time the application is filed. The term “nuclear adjuvant material” does not appear to be a known term in the art and the meaning of the term is not clear in view of the specification. Specifically, the specification discloses: “‘Nuclear adjuvant material’ is any material that undergoes a nuclear reaction with a high-energy neutron or other radiation generated in nuclear reactor transients and yields products, none of which are neutrons” (emphasis added) ([00013]). However, the specification later discloses: “In some versions, ‘nuclear adjuvant material’ is any material that exhibits a nuclear adjuvant effect which means the material undergoes a nuclear reaction with a high-energy neutron or other radiation generated in a nuclear reactor transients and yields products in which less than 50%, 40%, 30%, 20%, 10%, 5%, 1%, 2x10-2%, 4x10-3%, 8x10-4%, 1.6x10-4%, 3.2x10-5%, 6.4x10-6%, 1.28x10-6%, 2.56x10-7%, 5.12x10-8%, 1.02x10-8%, 2.05x10-9%, or 4.1x10-10%, are neutrons” (emphasis added) ([00014]). Thus, this definition allows for materials which yields products in which up to 50% are neutrons (see also below discussion regarding the phrase “less than 1% neutrons”). The specification further discloses “suitable components include all isotopes or elements” (emphasis added) ([00019]). In other words, the specification would appear to suggest that any known isotope and/or element may be a suitable “nuclear adjuvant material.” While Applicant may act as their own lexicographer to specifically define terms of a claim, in the present case, the specification does not clearly define the term “nuclear adjuvant material” and the meaning of the term is therefore unclear. Claim language may not be “ambiguous, vague, incoherent, opaque, or otherwise unclear in describing and defining the claimed invention.” In re Packard, 751 F.3d 1307, 1311, 110 USPQ2d 1785, 1787 (Fed. Cir. 2014). Applicants need not confine themselves to the terminology used in the prior art, but are required to make clear and precise the terms that are used to define the invention whereby the metes and bounds of the claimed invention can be ascertained. Claims 22 and 34 recite “the nuclear adjuvant material comprises one or more atomic species able to absorb a portion of hardened neutrons generated within a nuclear reactor” and “the one or more atomic species undergo a nuclear reaction upon absorption of hardened neutrons, and a product of the nuclear reaction comprises less than 1% neutrons.” It is unclear if the claims are directed towards an intended result or inherent property of the fuel pellet or fuel rod, or if the claims are intended to impart additional structural limitations on the fuel pellet or fuel rod. It is unclear what feature of the “one or more atomic species” allows for the absorption of just a “portion” of neutrons. The claims appear to describe aspects of operating a nuclear reactor without positively claiming such a structure. Examiner notes, apparatus claims cover what a device is, not what a device does. MPEP 2111-2115. Claims 23 and 35 recite “a product of the nuclear reaction comprises less than 1% neutrons.” It is unclear if the “less than 1% neutrons” is intending to refer to a weight percent or something else. This is further unclear in view of the materials and associated reactions disclosed in the specification. For example, the specification discloses Gd-152, Gd-153, Gd-154, Gd-155, Gd-156, Gd157, Gd-158, Gd-159, and Gd-160 as suitable isotopes for the nuclear adjuvant material ([00027]; see also Remarks, p. 2 electing these isotopes for the nuclear adjuvant material). The specification further discloses these isotopes undergo the following nuclear reactions ([0028]): Gd-152(N,P)Eu-152 Gd-152(N,P’)Eu-152 Gd-152(N,A’)Sm-149 Gd-152(N,2P)Sm-151 Gd-153(N,P)Eu-153 Gd-153(N,P’)Eu-153 Gd-154(N,P)Eu-154 Gd-154(N,P’)Eu-154 Gd-154(N,A)Sm-151 Gd-154(N,A’)Sm-151 Gd-155(N,P)Eu-155 Gd-155(N,P’)Eu-155 Gd-156(N,P)Eu-156 Gd-156(N,P’)Eu-156 Gd-156(N,A)Sm-153 Gd-156(N,A’)Sm-153 Gd-157(N,P)Eu-157 Gd-157(N,P’)Eu-157 Gd-158(N,A)Sm-155 Gd-159(N,P)Eu-159 Gd-159(N,P’)Eu-159 Gd-160(N,A)Sm-157 Using the reaction Gd-152(N,P)Eu-152 as an example, the “product of the nuclear reaction” would be a proton and Eu-152, which has 89 neutrons1. Thus, the “product” (p + Eu-152) comprises more than 1% neutrons by weight. This inconsistency renders unclear what it means for the product of the nuclear reaction to “comprise less than 1% neutrons” and what feature of the fuel pellet or fuel rod allows for the nuclear reaction as claimed. Additionally, it is unclear if the “absorption of hardened neutrons” is referring to the same “absorb[ing] a portion of hardened neutrons” or something else. Claim 26 recites “wherein at least a portion of the second particles act to slow a growth rate of a hardened neutron population during a reaction transient event.” It is unclear what feature of the “at least a portion of the second particles” allows for the “slowing [of] a growth rate of a hardened neutron population.” It is therefore unclear how the features of claim 26 are intended to further limit the structure of the “fuel pellet” of parent claim 21. Claim 28 recites “[t]he nuclear fuel pellet of claim 21, further comprising a consumable absorber.” Claim 38 similarly recites “wherein the first nuclear fuel pellet further comprises a consumable absorber.” It is unclear the relationship between the “nuclear adjuvant material” and “second particles” previously recited in parent claims 21 and 33 and the “consumable absorber” recited in claims 28 and 38. For example, “consumable absorbers” (also known as “burnable poisons”) include atomic species such as boron and gadolinium2. The specification discloses these atomic species as suitable “nuclear adjuvant materials” ([00021]-[00024], [00026]-[00028]). Thus, it is unclear if the claims are intending to require that the “nuclear adjuvant material” is a “consumable absorber” material, if the claims are intending to require the fuel pellet comprises the “nuclear adjuvant material” and an additional “consumable absorber,” or something else. This is further unclear in view of the above drawing objections. Any claim not explicitly addressed above is rejected because it is dependent on a rejected base claim. Note on Claim Interpretation As best understood by Examiner, the specification discloses materials including any one or any combination of the following elements or isotopes as suitable “nuclear adjuvant materials”: As, Ba, Br, Ce, Cl, Co, F, Ga, Ge, K, La, Mo, Nd, Os, Pr, S, Sr, Ti, Tl, V, and Zr ([00021]-[00024]; see also claims 24-25, 36-37) and isotopes of Ag, Am, Ar, Au, B, Be, Bi, Bk, C, Ca, Cd, Cf, Cm, Cr, Cs, Cu, Dy, Er, Eu, Fe, Gd, Hf, Hg, Ho, I, In, Ir, Kr, Li, Lu, Mg, Mn, N, Na, Nb, Ni, Np, O, Pa, Pb, Pd, Pm, Pu, Rb, Re, Rh, Ru, Sb, Sc, Se, Si, Sm, Sn, Ta, Tb, Tc, Te, Th, Tm, U, W, Xe, Y, Yb, and Zn as listed in the original disclosure ([00026]-[00028], pp. 63-65; see also claims 24-25, 36-37; see also Remarks, p. 2 electing Gd-152, Gd-153, Gd-154, Gd-155, Gd-156, Gd157, Gd-158, Gd-159, and/or Gd-160 for the nuclear adjuvant material). Thus, claim 21 requires a nuclear fuel pellet comprising: first particles formed of a fissile material; and second particles formed of one of the above identified elements or isotopes. Similarly, claim 33 requires a nuclear fuel rod, comprising: cladding; and a plurality of nuclear fuel pellets supported by the cladding, wherein a first nuclear fuel pellet of the plurality comprises: first particles formed of a fissile material; and second particles formed of one of the above identified elements or isotopes. Additionally, claims 22-23, 26, and 34-35 appear to recite statements that are essentially method limitations or statements of intended or desired use. These clauses, as well as other statements of intended use, do not serve to patentably distinguish the claimed structure over that of the reference as long as the structure of the cited references is capable of performing the intended use. See MPEP 2111-2115. As stated in MPEP 2114(II): “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). As best understood in view of the disclosure and the 35 U.S.C. 112(b) rejections above, materials including one or more of the following elements or isotopes would be capable of “absorb[ing] a portion of hardened neutrons generated within a nuclear reactor, ... the hardened neutrons hav[ing] energies greater than 800 keV and less than 20 MeV, and the portion compris[ing] between 0.00001% and 0.0001% of the hardened neutrons generated within the nuclear reactor” (claims 22, 34), capable of “undergo[ing] a nuclear reaction upon absorption of hardened neutrons, and a product of the nuclear reaction compris[ing] less than 1% neutrons” (claims 23, 35), and capable of “act[ing] to slow a growth rate of a hardened neutron population during a reaction transient event” (claim 36): As, Ba, Br, Ce, Cl, Co, F, Ga, Ge, K, La, Mo, Nd, Os, Pr, S, Sr, Ti, Tl, V, and Zr ([00021]-[00024], [00040]; see also claims 24-25, 36-37) and isotopes of Ag, Am, Ar, Au, B, Be, Bi, Bk, C, Ca, Cd, Cf, Cm, Cr, Cs, Cu, Dy, Er, Eu, Fe, Gd, Hf, Hg, Ho, I, In, Ir, Kr, Li, Lu, Mg, Mn, N, Na, Nb, Ni, Np, O, Pa, Pb, Pd, Pm, Pu, Rb, Re, Rh, Ru, Sb, Sc, Se, Si, Sm, Sn, Ta, Tb, Tc, Te, Th, Tm, U, W, Xe, Y, Yb, and Zn as listed in the original disclosure ([00026]-[00028], [00040], pp. 63-65; see also claims 24-25, 36-37; see also Remarks, p. 2 electing Gd-152, Gd-153, Gd-154, Gd-155, Gd-156, Gd157, Gd-158, Gd-159, and/or Gd-160 for the nuclear adjuvant material). Claim Rejections - 35 USC § 102 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention. Claims 21-23, 25-28, 33-35, and 37-38, as best understood, are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent No. 5,250,231 (“Grossman”). Regarding claims 21 and 33, Grossman (newly cited) discloses a nuclear fuel rod (“nuclear fuel rod”) (4:9-11), comprising: cladding (“tubular cladding”) (4:9-11); and a plurality of nuclear fuel pellets (“cylindrical fuel pellets”) supported by the cladding (4:11-13), wherein a first nuclear fuel pellet of the plurality comprises: first particles (“nuclear fuel”) formed of a fissile material (4:16-23, claim 9); and second particles (“burnable absorber”) formed of Er-162, Er-164, Er-166, Er-167, Er-168, Er-170 (3:65-4:1, 4:16-23) or Gd-152, Gd-154, Gd-155, Gd-156, Gd-157, Gd-158, and Gd-160 (4:2-8, 4:16-23), which are disclosed as suitable nuclear adjuvant materials (see above “Note on Claim Interpretation”). Regarding claims 22 and 34, Grossman discloses the nuclear fuel pellet of claim 21 and the nuclear fuel rod of claim 33. Grossman discloses the nuclear adjuvant material comprises one or more atomic species of Er-162, Er-164, Er-166, Er-167, Er-168, Er-170 (3:65-4:1) or Gd-152, Gd-154, Gd-155, Gd-156, Gd-157, Gd-158, and Gd-160 (4:2-8). As discussed above, the specification discloses these isotopes are capable of absorbing a portion of hardened neutrons generated within a nuclear reactor, the hardened neutrons have energies greater than 800 keV and less than 20MeV, and the portion comprises between 0.00001% and 0.0001% of the hardened neutrons generated within the nuclear reactor ([00026]-[00028]). Thus, Grossman discloses the features of claims 22 and 34. Regarding claims 23 and 35, Grossman discloses the nuclear fuel pellet of claim 22 and the nuclear fuel rod of claim 34. Grossman discloses the one or more atomic species comprises Er-162, Er-164, Er-166, Er-167, Er-168, Er-170 (3:65-4:1) or Gd-152, Gd-154, Gd-155, Gd-156, Gd-157, Gd-158, and Gd-160 (4:2-8). As discussed above, the specification discloses these isotopes are capable of undergoing a nuclear reaction upon absorption of hardened neutrons, a product of the nuclear reaction comprising less than 1% neutrons ([00026]-[00028]). Thus, Grossman discloses the features of claims 23 and 35. Regarding claim 25 and 37, Grossman discloses the nuclear fuel pellet of claim 22 and the nuclear fuel rod of claim 34. Grossman discloses the one or more atomic species comprise one or more isotopes selected from: Er162, Er164, Er166, Er167, Er168, Er170, Gd152, Gd154, Gd155, Gd156, Gd157, Gd158, Gd160, and combinations thereof (3:65-4:8). Regarding claim 26, Grossman discloses the nuclear fuel pellet of claim 21. Grossman discloses the second particles comprise Er-162, Er-164, Er-166, Er-167, Er-168, Er-170 (3:65-4:1) or Gd-152, Gd-154, Gd-155, Gd-156, Gd-157, Gd-158, and Gd-160 (4:2-8). As discussed above, the specification discloses these isotopes are capable of slowing a growth rate of a hardened neutron population during a reaction transient event ([00026]-[00028], [00040]). Thus, Grossman discloses the features of claim 26. Regarding claim 27, Grossman discloses the nuclear fuel pellet of claim 21. Grossman discloses the nuclear adjuvant material comprises erbium or gadolinium (3:65-4:8) and the fissile material comprise uranium (4:16-19). The coefficient of thermal expansion3 of erbium is 0.0000122 K-1, the coefficient of thermal expansion of gadolinium is 0.0000094 K-1, and the coefficient of thermal expansion of uranium is 0.0000139 K-1. Thus, the coefficient of thermal expansion of erbium is ~88% of the coefficient of thermal expansion of uranium, which falls within the claimed range of 50% to 150%, and the coefficient of thermal expansion of gadolinium is ~68% of the coefficient of thermal expansion of uranium, which also falls within the claimed range of 50% to 150%. Thus, Grossman discloses the features of claim 27. Regarding claims 28 and 38, Grossman discloses the nuclear fuel pellet of claim 21. Grossman discloses the nuclear adjuvant material is a consumable absorber and the fuel pellet comprises a plurality of consumable absorbers (3:65-4:22). Additional References The following references would also appear to be relevant to Applicant’s invention and are therefore cited in the attached PTO-892: US Publication No. 2015/0170767: discloses a nuclear fuel rod comprising cladding and a plurality of nuclear fuel pellets (100) supported by the cladding, and comprising first particles (120) formed of a fissile material, second particles formed of B or Gd which the instant specification discloses are nuclear adjuvant materials (see above discussion), and a consumable absorber (e.g., erbium) (FIGS. 1A-B, [0003], [0050], [0064]). US Patent No. 4,668,468: discloses a nuclear fuel rod (18) comprising cladding (16) and a plurality of nuclear fuel pellets (10) supported by the cladding and comprising first particles (e.g., “nuclear fuel materials”) formed of a fissile material and second particles formed of Gd-155 and Gd-157 which the instant specification discloses are nuclear adjuvant materials (see above discussion) (FIGS. 1-2, 4:28-33, 4:55-59, 5:33-46). The Applied References For Applicant’s benefit, portions of the applied reference(s) have been cited (as examples) to aid in the review of the rejection(s). While every attempt has been made to be thorough and consistent within the rejection, it is noted that the prior art must be considered in its entirety by Applicant, including any disclosures that may teach away from the claims. See MPEP 2141.02(VI). Application Status Information Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. For questions on access to the Private PAIR system, contact the Electronic Business Center at 866-217-9197 (toll-free). For assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (in USA or Canada) or 571-272-1000. Interview Information Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. Contact Information Examiner Jinney Kil can be reached at (571) 270-5217, on Monday-Thursday from 8:30AM-6:30PM ET. Supervisor Jack Keith (SPE) can be reached at (571) 272-6878. /JINNEY KIL/Examiner, Art Unit 3646 1 https://en.wikipedia.org/wiki/Isotopes_of_europium 2 https://en.wikipedia.org/wiki/Neutron_poison#Burnable_poisons 3 https://periodictable.com/