Ahmed M. Gomaa et al.

Patent Trials and Appeals Board

Jan 14, 2020

14199674 - (D) (P.T.A.B. Jan. 14, 2020)

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.
14/199,674 03/06/2014 Ahmed M. Gomaa 020569-31101(FRC4-54890) 1730
71762 7590 01/14/2020
JONES DELFLACHE LLP
1333 HEIGHTS BOULEVARD
SUITE 300
HOUSTON, TX 77008
EXAMINER
NOLD, CHARLES R
ART UNIT PAPER NUMBER
3674
MAIL DATE DELIVERY MODE
01/14/2020 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 AHMED M. GOMAA, QI QU, RUSSELL L. MAHARIDGE,
SCOTT G. NELSON, and TED B. REED

Appeal 2018-006662
Application 14/199,674
Technology Center 3600
____________

Before BIBHU R. MOHANTY, JAMES A. WORTH, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 2–8, 16–31, and 33. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as “Baker
Hughes, a GE Company, LLC.” Appeal Br. 1.
Appeal 2018-006662
Application 14/199,674

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BACKGROUND
“The disclosure relates to a method of enhancing the complexity of a
fracture network during fracturing of a subterranean formation by pumping a
high breakdown pressure fluid followed by a low breakdown pressure fluid
in order to increase the Stimulated Reservoir Volume (SRV) within the
formation.” Spec. ¶ 1.
CLAIMS
Claims 16, 20, 22, and 33 are on the independent claims on appeal.
Claim 33 is illustrative of the appealed claims and recites:
33. A method of enhancing the complexity of a fracture
network during hydraulic fracturing of a subterranean formation
penetrated by a well comprising:
(a) selecting a first fluid having a first viscosity;
(b) pumping the first fluid into the well at a first
breakdown pressure causing a first fracture within the
subterranean formation;
(c) selecting a second fluid having a second viscosity; and
(d) pumping the second fluid into the well at a second
breakdown pressure causing a second fracture within the
subterranean formation, the first breakdown pressure being
greater than the second breakdown pressure and the first
viscosity being greater than the second viscosity,
wherein a fracture network created by the first fracture is
modified by the second fracture, the second fracture deviating
from the orientation of the first fracture.
Appeal Br. 27.
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Application 14/199,674

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REJECTIONS2
1. The Examiner rejects claims 33, 2–8, 16–19, and 22–31 under 35 U.S.C.
§ 103 as unpatentable over Gu3 in view of EPA Guidance.4
2. The Examiner rejects claims 20 and 21 under 35 U.S.C. § 103 as
unpatentable over Gu in view of EPA Guidance and Dusseault.5
DISCUSSION
Each of the independent claims is directed to a method of enhancing
the complexity of a fracture network and requires steps including using a
first fluid to create a first fracture and using a second fluid to create a second
fracture and wherein the first fluid has a higher viscosity than the second
fluid. We are persuaded of reversible error in the rejection based on
Appellant’s argument that the Examiner has not established that the art of
record teaches a method using fluids with this viscosity relationship. See,
e.g., Appeal Br. 9–11.
With respect to claim 33, the Examiner finds that Gu teaches a
method including pumping a first fluid with a first viscosity to cause a first
fracture and pumping a second fluid with a second viscosity to cause a
second fracture and wherein the viscosity of the first fluid is higher than the

2 The rejections under 35 U.S.C. § 112 have been withdrawn. See Ans. 3–4.
3 Gu et al., US 2012/0125617 A1, pub. May 24, 2012.
4 United States Environmental Protection Agency Region 5 – Underground
Injection Control Section Regional Guidance, “Determination of Maximum
Injection Pressure for Class I Wells,” Revised Jan. 1994, available at
https://www.epa.gov/sites/production/files/2015-09/documents/r5-deepwell-
guidance7-determination-maximum-injection-pressure-class1-199401-
9pp.pdf
5 Dusseault et al., US 2013/0284438 A1, pub. Oct. 31, 2013.
Appeal 2018-006662
Application 14/199,674

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viscosity of the second fluid. Non-Final Act. 5–6 (citing Gu ¶¶ 4, 8, 27, 53,
54); see also Ans. 8–10.
We agree with Appellant that Gu does not disclose a method in which
a first fluid with a higher viscosity is used to create a first fracture followed
by the use of a second fluid with a lower viscosity used to create a second
fracture as required by each of the independent claims. As discussed below,
we have reviewed the cited portions of Gu and find that Gu only expressly
teaches the use of a first fluid with a lower viscosity than the second fluid.
In the rejection, the Examiner finds that Gu paragraph 27 teaches that
the second fluid has a lower viscosity than the first fluid because Gu teaches
that the second fluid may be a gas. We disagree. Here, Gu teaches an
embodiment that “uses a first treatment fluid that includes a fluid having
optionally a low amount of a viscosifier and a second treatment fluid made
of composition 106 of high solids content fluid.” Gu ¶ 27. This disclosure
indicates that that the first fluid has a lower viscosity than the second,
although Gu does not expressly indicate the relationship in viscosity
between the fluids. Further, the Examiner relies on the last sentence of this
paragraph as evidence that the second fluid may have a lower viscosity than
the first. Ans. 9. This sentence states that “the first or second carrier fluid
may be a gas.” Gu ¶ 27. We do not consider this to be a definitive
statement regarding the relative viscosity of the first and second fluids.
Additionally, the Examiner cites Gu paragraph 38 as suggesting
“fluids of varying viscosity, and different reasons for varying viscosity.”
Ans. 9. This paragraph discusses the use of viscosifying agents in low
amounts and indicates that routine tests may be performed “to determine
acceptable viscosifier amounts for a particular embodiement.” Gu ¶ 38.
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Application 14/199,674

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However, we see no indication in this paragraph regarding the relative
viscosities of first and second fracture fluids.
The Examiner also finds that Gu “teaches alternating viscous fluids
with slurry fluids, which would create a high viscosity/low viscosity fluid
combination covering the claims.” Ans. 9 (citing Gu ¶ 8). We disagree. As
discussed above, the claims require the use of a first fluid with a higher
viscosity to create a first fracture and a second fluid with a lower viscosity to
create a second fracture. As background, Gu discloses that “[r]ecently a
different method of creating propped fractures has been proposed in which a
viscous fluid and a slurry fluid are alternated at a very high frequency,
allowing for heterogeneous placement of proppant in the formation.” Gu ¶
8. The Examiner does not point to any indication that this method of
alternating fluids is employed in the invention of Gu or that such a method
would create first and second fractures as required by the independent
claims. The mere disclosure of alternating fluids is not sufficient to disclose
the method steps at issue here.
Finally, the Examiner finds that Gu paragraph 53 provides a “clear
teaching to use a high viscosity fluid followed by a low viscosity fluid.”
Ans. 9. We disagree. Here, Gu discloses that a second treatment fluid may
be used without an added viscosifying agent. Gu ¶ 53. We are not
persuaded that this provides a clear teaching of using a high viscosity fluid
followed by a low viscosity fluid because Gu does not disclose the viscosity
relationship between the fluids. Notably, this paragraph discusses the
second treatment in comparison to a “conventional frac slurry” and without
comparison to the first treatment fluid. Thus, we do not see a clear
disclosure that the second treatment fluid has a lower viscosity than the first
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Application 14/199,674

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treatment fluid. At best, this indicates that the second treatment may have a
lower viscosity than a traditional treatment fluid, and the Examiner has not
explained or cited to evidence explaining that this amounts to showing the
comparative viscosities of the first and second fluids used in Gu’s method.
Based on the foregoing, we determine the Examiner erred in finding
that Gu teaches a method of using a first fluid with a higher viscosity to
create a first fracture followed by using a second fluid with a lower viscosity
to create second fracture. Beyond the findings discussed above, the
Examiner does not otherwise explain why the use of fluids with the claimed
relative viscosities would have been obvious in view of the art of record with
articulated reasoning with rational underpinnings. For this reason, we do not
sustain the rejections of any of independent claims 16, 20, 22, and 33. And
for the same reasons, we do not sustain the rejections of any of the
dependent claims.
CONCLUSION
We REVERSE the rejections of claims 2–8, 16–31, and 33.
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
33, 2–8, 16–
19, 22–31
103 Gu, EPA
Guidance
33, 2–8,
16–19,
22–31
20, 21 103 Gu, EPA
Guidance,
Dusseault
20, 21
Overall
Outcome
2–8, 16–
31, 33

REVERSED