CGG SERVICES SADownload PDFPatent Trials and Appeals BoardMar 31, 20222021002982 (P.T.A.B. Mar. 31, 2022) Copy Citation 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. 15/111,011 07/12/2016 Patrice GUILLAUME 0336-439-2/100723 8226 11171 7590 03/31/2022 Patent Portfolio Builders, PLLC 754 Warrenton Road Suite 113-314 Fredericksburg, VA 22406 EXAMINER QUIGLEY, KYLE ROBERT ART UNIT PAPER NUMBER 2865 NOTIFICATION DATE DELIVERY MODE 03/31/2022 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): Mailroom@ppblaw.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PATRICE GUILLAUME and FRANCESCO PERRONE Appeal 2021-002982 Application 15/111,011 Technology Center 2800 Before MICHAEL P. COLAIANNI, JAMES C. HOUSEL, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 5-10, and 13-16 under 35 U.S.C. § 102(a)(1) as anticipated by Broto (K. Broto & A. Ehinger, Anisotropic Traveltime Tomography for Depth Consistent Imaging of PP and PS Data, THE LEADING EDGE, 114-119, February 2003 (“Broto”)). See Final Office Action (“Final Act.”) dated June 30, 2020, 2-7. We have jurisdiction under 35 U.S.C. § 6(b). 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies CGG SERVICES SA as the real party in interest. Appeal Brief (“Appeal Br.”) filed November 13, 2020, 2. Appeal 2021-002982 Application 15/111,011 2 We AFFIRM, but institute a NEW GROUND OF REJECTION as to claims 1-3, 5-11, and 13-16 pursuant to 37 C.F.R. § 41.50(b). CLAIMED SUBJECT MATTER The invention recited in the claims on appeal relates to methods and systems for seismic image acquisition and, more particularly, to mechanisms and techniques for generating velocity models used in seismic data processing. Specification (“Spec.”) filed July 12, 2016, ¶ 2. Seismic data acquisition and processing techniques are used to generate profile images of a geophysical subsurface structure of strata underlying a land surface or seafloor. Id. ¶ 3. Such data acquisition involves the generation of elastic waves and the collection of reflected/refracted versions of these elastic waves, which are then processed to generate the profile images. Id. Claim 1, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the claimed subject matter: 1. A method for processing seismic data acquired with multicomponent receivers over a subsurface, the method comprising: jointly inverting depth migrated primary wave (P) seismic reflection data (PP data) and depth migrated shear wave (S) seismic reflection data (PS data) as part of a nonlinear tomography process with a cost function based on residual moveouts and which adheres to one or more image co-depthing constraints, wherein the nonlinear tomography yields an image of the subsurface useable to assess an oil and/or gas reservoir in the subsurface. Independent claim 9 recites a computer system for processing seismic data comprising an interface configured to receive seismic data from Appeal 2021-002982 Application 15/111,011 3 multicomponent receivers over a subsurface, and at least one processor configured to perform a process substantially as recited in claim 1. OPINION Anticipation Rejection We review the appealed rejection for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”)). After considering Appellant’s arguments and the evidence of record, we are not persuaded of reversible error in the stated rejection for the findings, reasoning, and conclusions set forth in the Final Office Action and the Examiner’s Answer. We add the following for emphasis. The Examiner finds that Broto discloses the method of processing seismic data as recited in claim 1. Final Act. 3-5. In particular, the Examiner finds that Broto’s prestack traveltime tomography which involves joint inversion of PP and PS traveltimes and incorporates a penalty term within the objective function to be minimized corresponds to claim 1’s joint inversion of PP and PS data as part of a nonlinear tomography process with a cost function based on residual moveouts (“RMOs”) and adheres to one or more image co-depthing constraints. Id. Appellant argues that Broto’s traveltime tomography process, which is based on an integral along a pathway, is substantively different from the claimed nonlinear tomography process. Appeal Br. 3-4. In this regard, Appeal 2021-002982 Application 15/111,011 4 Appellant directs our attention to “[t]he single layer invariants-based residual moveout (RMO) nonlinear tomography methodology” disclosed in the Specification and drawings, as well as in Guillaume (US 6,577,955 B2, issued June 10, 2003). Id. at 4, citing Spec. ¶¶ 33-37, 40-47, Figs. 4(a), 4(b), 5(a), 5(b), 6(a), and 6(b). Appellant describes the nonlinear tomography process as starting with an initial P and S velocity model, the input seismic PP and PS data is pre-stack depth migrated and subjected to horizon picking and RMO/Dip picking. Id. Appellant then describes that a kinematic map de- migration process is then performed on both outputs to generate desired horizon and RMO invariants, which are used as inputs to a kinematic re- migration process which starts an update loop yielding an updated P and S velocity model, which can also involve re-migrating the PP-PS co-depthing data. Id. at 4-5. Appellant contends that Broto’s methodology “is nothing like the nonlinear tomography definition in this application’s specification.” Appeal Br. 5. Appellant asserts that Broto’s methodology does not employ any horizon and RMO picking or use of kinematic invariants “as required by the use of the term ‘nonlinear tomography process’ defined in the application.” Id. This argument is not persuasive of reversible error because it is based on limitations that do not appear in the claims. See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (rejecting Appellant’s nonobviousness argument as based on limitation not recited in claim); In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“Many of appellant’s arguments fail from the outset because, as the solicitor has pointed out, they are not based on limitations appearing in the claims.”). Appeal 2021-002982 Application 15/111,011 5 This argument is also unpersuasive because the Specification fails to define “nonlinear tomography,” or otherwise limit its meaning so as to exclude methodologies not involving the descriptions set forth in Appellant’s Specification and drawings, contrary to Appellant’s contentions. It is well established that “the PTO must give claims their broadest reasonable construction consistent with the specification. . . . Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). “[A]s applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” Id. Our reviewing court has recognized that “the specification may reveal a special definition given to a claim term by the patentee that differs from the meaning it would otherwise possess.” Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc). When the patentee acts as its own lexicographer, that definition governs. Id. “To act as its own lexicographer, a [patent applicant] must ‘clearly set forth a definition of the disputed claim term’ other than its plain and ordinary meaning.” Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)). To begin, we note that claims 1 and 9 recite that the joint inversion of depth migrated PP and PS data is “part of a nonlinear tomography process with a cost function based on residual moveouts and which adheres to one or more image co-depthing constraints.” Thus, the claims recite performing joint inversion of PP and PS data as part of a nonlinear tomography process, and only requiring that the nonlinear tomography process include a cost Appeal 2021-002982 Application 15/111,011 6 function based on RMOs and adhering to one or more image co-depthing constraints. These claims do not otherwise further limit nor define what a nonlinear tomography process must be. The Specification teaches a conventional, single layer invariants- based RMO nonlinear tomography process for seismic data, referring to Guillaume.2 Spec. ¶¶ 18, 32; Figs. 4(a) and 4(b). The Specification also teaches a conventional, multi-layer nonlinear tomography process for seismic data. Id. ¶¶ 19, 35; Figs. 5(a) and 5(b). We note that the Specification discloses that these conventional nonlinear tomography processes include a cost function based on RMOs. Id. ¶¶ 34, 37. The Specification further teaches inventive embodiments combine joint inversion of PP and PS data which is constrained by co-depthing information with the conventional invariant-based inversion. Id. ¶¶ 20, 38. However, Appellant fails to direct our attention to any definition per se of a nonlinear tomography process nor to any disclosure teaching the required steps or elements of a nonlinear tomography process. In particular, there is no disclosure, nor evidence of record, that horizon and RMO picking and use of kinematic invariants are elements that are implicitly required by any nonlinear tomography process. Appellant next argues that Broto fails to teach joint inversion of PP and PS data as part of a nonlinear tomography process with a cost function 2 Although Appellant discloses that the conventional, single layer invariants- based RMO nonlinear tomography methodology is described in Guillaume, we note that nowhere does Guillaume describe this methodology as nonlinear. Instead, Guillaume, at best, describes the process as tomographic inversion. Guillaume 1:1-3, 13-14 (“methods of tomographically inverting picked events on seismic traces”). Appeal 2021-002982 Application 15/111,011 7 based on RMOs. Appeal Br. 6. Appellant asserts that Guillaume includes an explanation of “residual moveout” that is well-known to those skilled in the art. Id. Appellant asserts that seismic waves reflected in the subsoil are recorded at arrival times that vary as a function of the offset between the source and receiver in a horizontal plane. Id. Appellant then asserts that, before traces can be added, they have to corrected to bring them to a common reference, such as zero-offset trace. Id. According to Appellant, this correction is called Normal Move Out (“NMO”) correction. Id. However, Appellant asserts that most of the time the NMO correction is not sufficiently precise and distortions remain, necessitating an additional RMO, which depends on offset, azimuth angle, incidence angle, etc. Id. Appellant contends that an RMO-based cost function is substantively different from a traveltime-based cost function. Id. at 6-7. This argument is also not persuasive of reversible error. Initially, we note that neither Guillaume nor the Specification provides an explanation for either NMO or RMO. Indeed, neither Guillaume nor the Specification uses the term “normal,” and Guillaume never uses the term “residual.” Although the Specification refers to “PS residual moveouts (RMOs),” Appellant fails to direct our attention to any disclosure defining, or otherwise explain, precisely what an RMO is. As such, neither Guillaume nor the Specification supports Appellant’s assertions regarding NMO and RMO. Therefore, Appellant’s contention that an RMO-based cost function is substantively different from the traveltime-based cost function (allegedly taught by Broto) lacks support and is merely conclusory. Appeal 2021-002982 Application 15/111,011 8 Appellant does not separately argue dependent claims 2 and 10. Accordingly, we sustain the Examiner’s anticipation rejection of claims 1, 2, 9, and 10. Claims 5 and 13 The Examiner finds that Broto teaches that the joint PP and PS traveltime tomography forces co-depthing of the reflectors because the PP and PS traveltime misfits are sufficiently small due to the isotropic and anisotropic inversions. Final Act. 5. The Examiner also finds that Broto teaches that the depth of the top of reservoir is the same for PP and PS postmigration stacks. Id. The Examiner finds that these features correspond to the limitations recited in claims 5 and 13. Id. Appellant argues that Broto fails to anticipate one or more image co- depthing constraints includes a reflector constraint which minimizes discrepancies between kinematically re-migrated seismic reflectors in PP and PS domains. Appeal Br. 8. Appellant contends that “unlike in the nonlinear tomography process specified in claim 1, in Broto, there is no kinematical re-migration and therefore no reflector constraints to minimize such a discrepancy.” Id. Appellant’s argument amounts to no more than a recitation of the additional limitations of the dependent claims and a generic denial that Broto teaches these limitations. We and our reviewing court have long held that such “argument” does not merit separate consideration. See, e.g., In re Lovin, 652 F.3d 1349, 1356-57 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Appeal 2021-002982 Application 15/111,011 9 Accordingly, we sustain the Examiner’s anticipation rejection of claims 5 and 13. Claims 6 and 14 The Examiner finds that Broto teaches the method and system of dependent claims 6 and 14. Final Act. 6. Specifically to Appellant’s argument, the Examiner finds that Broto teaches that the joint PP and PS traveltime tomography forces co-depthing of the reflectors because the PP and PS traveltime misfits are sufficiently small due to the isotropic and anisotropic inversions, and that the velocity model incorporates a penalty term within the objective function to be minimized. Final Act. 6. The Examiner also finds that Broto teaches that the depth of the top of reservoir is the same for PP and PS postmigration stacks. Id. Appellant argues that Broto fails to teach kinematically re-migrating the seismic data, and furthermore performing such a kinematic re-migration using PP and PS RMO invariants and at least one of P or S horizon invariants. Appeal Br. 9. Appellant’s argument amounts to no more than a recitation of the additional limitations of the dependent claims and a generic denial that Broto teaches these limitations. Such “argument” does not merit separate consideration. Lovin, 652 F.3d at 1356-57. Appellant does not separately argue dependent claims 7-10, 15, and 16. Accordingly, we sustain the Examiner’s anticipation rejection of claims 6-10 and 14-16. Appeal 2021-002982 Application 15/111,011 10 New Ground of Rejection: Patent Eligibility For the reasons explained below, claims 1-3, 5-11, and 13-16 are newly rejected under 35 U.S.C. § 101 as being directed to patent ineligible subject matter. PRINCIPLES OF LAW An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The Supreme Court, however, has long interpreted 35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, we are guided by the Supreme Court’s two-step framework, described in Mayo and Alice. Alice, 573 U.S. at 217-18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework, we first determine what concept the claim is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”). Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594-95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts Appeal 2021-002982 Application 15/111,011 11 determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267-68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim at issue recited a mathematical formula, but the Supreme Court held that “a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula.”). Having said that, the Supreme Court also indicated that a claim “seeking patent protection for that formula in the abstract . . . is not accorded the protection of our patent laws, and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.”). If the claim is “directed to” an abstract idea, we turn to the second step of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent- eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to Appeal 2021-002982 Application 15/111,011 12 monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Id. In January 2019, the U.S. Patent and Trademark Office (USPTO) published revised guidance on the application of § 101.3 The Manual of Patent Examining Procedure (“MPEP”) now incorporates this revised guidance and subsequent updates at § 2106 (9th ed. Rev. 10.2019, rev. June 2020).4 Under MPEP § 2106, we first look to whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes) (“Step 2A, Prong One”); and (2) additional elements that integrate the judicial exception into a practical application (“Step 2A, Prong Two”).5 MPEP § 2106.04(a), (d). 3 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Revised Guidance”). In response to received public comments, the Office issued further guidance on October 17, 2019, clarifying the 2019 Revised Guidance. USPTO, October 2019 Update: Subject Matter Eligibility (the “October 2019 Update”). “All USPTO personnel are, as a matter of internal agency management, expected to follow the guidance.” 84 Fed. Reg. at 51; see also October 2019 Update at 1. 4 All references to the MPEP are to the Ninth Edition, Revision 10.2019 (Last Revised June 2020), unless otherwise indicated. 5 “Examiners evaluate integration into a practical application by: (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (2) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application.” MPEP § 2106.04(d)(II). Appeal 2021-002982 Application 15/111,011 13 Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application,6 do we then look, under Step 2B, to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional activity” in the field; or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.7 MPEP § 2106.05(d). ANALYSIS Applying the guidance set forth in the Memorandum, we conclude that claims 1-3, 5-11, and 13-16 do not recite patent-eligible subject matter. Step 1: Statutory Category of Invention Initially, each of claims 1-3, 5-11, and 13-16 is directed to a method or a system. The method claims clearly fall within one of the four statutory categories of invention and, therefore, satisfy Step 1 of the Revised Guidance. The system claims, in particular independent claim 9, recite an interface and at least one processor. As these are structural recitations, we find the system claims are directed to an apparatus. As such, the system claims fall within one of the four statutory categories of invention and, 6 This corresponds to Alice part one where it is determined whether the claim is “directed to” an abstract idea. See Alice, 573 U.S. at 219. If a claim is “not directed to an abstract idea under step one of the Alice analysis, we do not need to proceed to step two.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). 7 This corresponds to Alice part two where it is determined whether the claim “contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Alice, 573 U.S. at 221. Appeal 2021-002982 Application 15/111,011 14 therefore, satisfy Step 1 of the Revised Guidance. Therefore, we turn next to Step 2A(1) of the Revised Guidance. Step 2A(1): The Judicial Exception Under Step 2A(1), we must determine whether each claim recites any judicial exception to patent eligibility. 2019 Revised Guidance 54. The 2019 Revised Guidance identifies three judicially-excepted groupings: (1) mathematical concepts, (2) certain methods of organizing human activity such as fundamental economic practices, and (3) mental processes. Id. at 52. We find that independent claims 1 and 9 recite a judicial exception in the form of mathematical concepts. In this regard, claim 1 recites “jointly inverting depth migrated primary wave (P) seismic reflection data (PP data) and depth migrated shear wave (S) seismic reflection data (PS data) as part of a nonlinear tomography process with a cost function based on residual moveouts and which adheres to one or more image co-depthing constraints.” Claim 9 recites “at least one processor configured to jointly invert depth migrated primary wave (P) seismic reflection data (PP data) and depth migrated shear wave (S) seismic reflection data (PS data) as part of a nonlinear tomography process with a cost function based on residual moveouts and which adheres to one or more image co-depthing constraints.” Appellant discloses that the invention relates to “generating velocity models used in seismic data processing.” Spec. ¶ 2. In particular, Appellant discloses “[m]ethods and systems for velocity modelling of seismic data, and techniques for estimating parameters associated with velocity modelling.” Id. ¶ 10. The method and system involve “jointly inverting primary wave (P) seismic data (PP data) and shear wave (P) seismic data (PS data) as part of a Appeal 2021-002982 Application 15/111,011 15 nonlinear tomography process which adheres to one or more co-depthing constraints.” Id. ¶¶ 11, 12. Such methodology includes “computing matching filters between a PP image and a PS image at a plurality of lateral positions of the seismic data; and minimizing an objective function of non-zero lag coefficients of the matching filters.” Id. ¶ 13. The seismic data processing “typically involves a number of different steps or subtypes of processing including, for example, one or more of deconvolution, gathering, stacking, velocity model building and migration.” Id. ¶ 31. “[E]mbodiments [of the invention] simultaneously invert PP and PS RMO data together with optionally other data mentioned above (e.g., VSP, wells info, dip distortions, etc.) to enable simultaneously estimating P and S propagation attributes such as P and S velocity and/or Tilted Orthorhombic (TORT) anisotropy parameters.” Id. ¶ 38. Appellant further discloses that “the co-depthing constraint options provide additional benefits.” Spec. ¶ 39. Appellant describes these constraint options: For example, according to one embodiment, the discrepancies between kinematically re-migrated (zero-offset or finite offset) key seismic reflectors in PP and PS are minimized by adding an additional weighted term to the cost function which is used to update the multi-layer velocity attributes. Alternatively, or additionally, another co-depthing constraint minimizes volumetric Vp/Vs discrepancies between pseudo-observed Vp/Vs values and model values for each piece of a reflector in the subsurface by adding a different additional weighted term to the cost function. Id. Appellant discloses more detailed description of these two co-depthing constraint examples as an update loop (iterative) algorithm as set forth in Figures 6(a) and 6(b) below: Appeal 2021-002982 Application 15/111,011 16 Fig. 6(a), depicting the inventive nonlinear tomography process Fig. 6(b), depicting inputs and steps of the inventive nonlinear tomography process Figure 6(a) shows the inventive nonlinear tomography process with joint PP and PS data inversion 600, wherein branch 602 begins with initial P velocity model 604, which is subjected to pre-stack depth migration of the PP data. Spec. ¶ 40. Appellant discloses that PreSDM refers to a technique Appeal 2021-002982 Application 15/111,011 17 whereby recorded seismic events are migrated in space relative to the recorded location because seismic receivers don’t directly provide accurate depth information associated with a recorded seismic event. Id. The PreSDM is subjected to both PP horizon picking 606 and PP RMO/Dip picking 608, wherein horizon picking refers to identifying locally coherent events on a seismic image associated with reflections and RMO/Dip picking refers to distortion correction in a migration result which characterizes inaccuracies in the velocity model used to perform the migration. Id. Then a kinematic map de-migration process 610, 612 is performed on both outputs to generate P horizon invariants 614 and PP RMO invariants 616. Id. Both the PP and PS RMO invariants are used as inputs 618 to a kinematic re-migration process 620 which starts an update loop. Spec. ¶ 41. This step involves kinematic forward modelling inversion of the seismic data using inputs 618 which generates new facet positions of the seismic data and new predicted RMO values. Id. This step can involve re-migrating the PP and PS co-depthing data. Id. The predicted RMO values, along with optional well formation tops inputs 621, are provided to cost function evaluation process 622, which may use Equation (1) below: F = Wcodepth_Ref1*[∑hor_local_eventsWi*║Zps - Ztarget║]2 + Wcodepth_Vol*[∑hor_local_eventsWj*║VpVsmod - VpVsobs║]2 + ∑rmo_facetsWk*║dRMO║2 + Wdip*[∑dipfacetsWl*║dipkinemig - diptarget║]2 + Wother *data term + Termlaplacian + Termstructural_smoothing + damping + . . . where: Zps: modelled depth of PS horizon; Ztarget: pseudo-observed horizon depth (a priori or PP); VpVsmod: Vp/Vs ratio in current model at given position (x,y,z); Appeal 2021-002982 Application 15/111,011 18 VpVsobs: pseudo-observed Vp/Vs ratio at given position (x,y,z); recomputed/remapped in current model from (soft a priori) volumetric field of Vp/Vs ratio resulting from warping of initial seismic images; Wcodepth_Refl = global weighting factor of reflector co-depthing term in cost function; Wcodepth_Vol = global weighting factor of volumetric Vp/Vs ratio co-depthing term in cost function; Wijkl = individual variable weights applied to elementary contributors (typically locally coherent events) to all terms (RMO, dip, co-depthing . . . ) in cost function; and Wdip, Wother are other global weights (wrt reference RMO) applied to data terms. Id. ¶ 51. The cost function evaluates the predicted RMO values, as well as the well and co-depthing mismatches. Id. ¶ 42. The nonlinear tomography process next performs linear update (inverse modeling process) 624 of the multi-layer velocity attributes by solving a system of linear equations built from the above cost function, including equations that contribute to the enforcement of PP-PS co-depthing. Spec. ¶ 43. The P and/or S horizons are repositioned at step 626 using the P and/or S horizon invariants. Id. ¶ 44. Appellant discloses that such repositioning algorithm may be performed in different ways. Id. ¶ 45. After horizon repositioning at step 626, the data can be checked at step 628 to determine if a stopping criterion is met, for example, if the RMO associated with the cost function is less than a given threshold or if the model update becomes sufficiently small. Spec. ¶ 46. If a stopping criterion is met, a final pre-stack depth migrated data (image) is output at step 630. Id. If not, another iteration of the update loop is performed. Id. Appeal 2021-002982 Application 15/111,011 19 Given the above description of the inventive nonlinear tomography process for joint inversion of PP and PS data with a cost function based on RMOs and which adheres to one or more image co-depthing constraints, we are satisfied that the “jointly inverting” step of claim 1 and the “at least one processor configured to jointly invert” element of claim 9 are directed to mathematical concepts and, therefore, these claims recite such mathematical concepts. See 2019 Revised Guidance, 84 Fed. Reg. 52; see also October 2019 Update 2. We further note that this step is similar to other concepts the courts have identified as abstract ideas, i.e., mathematical concepts. See Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138 (Fed. Cir. 2016) (methods of logic circuit design, comprising converting a functional description of a level sensitive latch into a hardware component description of the latch); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014) (organizing information through mathematical correlations). In Electric Power Group, our reviewing court explained that concepts of collecting and analyzing information, when broadly claimed, fall within the “realm of abstract ideas”: Information as such is an intangible. See Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 451 n.12 (2007); Bayer AG v. Housey Pharm., Inc., 340 F.3d 1367, 1372 (Fed. Cir. 2003). Accordingly, we have treated collecting information, including when limited to particular content (which does not change its character as information), as within the realm of abstract ideas. See, e.g., Internet Patents, 790 F.3d at 1349; OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015); Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014); CyberSource Corp. v. Retail Decisions, Appeal 2021-002982 Application 15/111,011 20 Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011). In a similar vein, we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category. See, e.g., TLI Commc’ns, 823 F.3d at 613; Digitech, 758 F.3d at 1351; SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. App’x 950, 955 (Fed. Cir. 2014); Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Canada (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. 2011); SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1333 (Fed. Cir. 2010); see also Mayo, 132 S. Ct. at 1301; Parker v. Flook, 437 U.S. 584, 589-90 (1978); Gottschalk v. Benson, 409 U.S. 63, 67 (1972). And we have recognized that merely presenting the results of abstract processes of collecting and analyzing information, without more (such as identifying a particular tool for presentation), is abstract as an ancillary part of such collection and analysis. See, e.g., Content Extraction, 776 F.3d at 1347; Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014). Electric Power Group, LLC v. Alstom, S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016). Claims 2, 3, 5-8, 10, 11, and 13-16 depend from claim 1 or claim 9, directly or indirectly. Claims 2, 3, 5, 10, 11, and 13 merely further limit one or more co-depthing constraints, which are parameters used in the nonlinear tomography process of claims 1 and 9. Claims 6 and 14 further limits the joint inversion of claims 1 and 9, respectively, as part of the nonlinear tomography process which adheres to one or more image co-depthing constraints, by reciting that this step further comprises substeps of kinematic re-migration, evaluation of a cost function, performing a linear update, and horizon repositioning, each of which was identified as mathematical concepts in the analysis above. As such, claims 2, 3, 5-8, 10, 11, and 13-16 Appeal 2021-002982 Application 15/111,011 21 include the abstract idea, i.e., mathematical concepts, recited in claims 1 and 9. The mere fact that method claims 1-3 and 5-8 and system claims 9- 11 and 13-16 recite an abstract idea does not automatically render these claims patent-ineligible. See Diehr, 450 U.S. at 187 (“[A] claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program, or digital computer.”). As a result, we now turn to Step 2A(2) of the Revised Guidance to determine whether these claims integrate the judicial exception into a practical application. Step 2A(2): Integration into a Practical Application Having determined that method claims 1-3 and 5-8 and system claims 9-11 and 13-16 recite the abstract concept of a mathematical relationship for seismic data processing by joint inversion of the PP and PS seismic data as part of a nonlinear tomography process with a cost function based on RMOs and which adheres to one or more image co-depthing constraints, we next look to determine whether the claims recite “additional elements that integrate the judicial exception into a practical application.” MPEP § 2106.05(a)-(c), (e)-(h); Memorandum, 84 F.3d at 53-54. Integration into a practical application requires an additional element or a combination of additional elements in the claim to “apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the exception.” 2019 Revised Guidance 53-54; see also id. at 55 (setting forth exemplary considerations indicative that an additional Appeal 2021-002982 Application 15/111,011 22 element or combination of elements may have integrated the judicial exception into a practical application). Here, we find none. We find that the additional elements claims 1-3, 5-11, and 13-16 recite do not integrate the judicial exception into a practical application. Notably, the claims do not recite and the Specification does not describe an improvement to the functioning of a computer. Nor are the additional elements directed to a particular machine or transformation. The claims, at best, produce an improved image of the subsurface underlying a land surface or seafloor which is “useable to assess an oil and/or gas reservoir in the subsurface.” Claim 1; see also Spec. ¶ 64 (“[O]ne or more images 710 of the subsurface associated with the seismic data can be generated either as a displayed image on a monitor, a hard copy on a printer or an electronic image stored to a removable memory device.”) However, neither the method nor system requires any step of, or structural element for, applying or using the subsurface image for any purpose or to solve any problem. The mere display of an image on an electronic screen (or printing of the image onto a substrate) has been held to be insignificant post-solution activity. Elec. Power Grp., 830 F.3d at 1354-1354; see also 2019 Revised Guidance 55 (setting forth examples in which a judicial exception has not been integrated into a practical application). The Federal Circuit has summarized such a situation in this way: We have explained that claims focused on “collecting information, analyzing it, and displaying certain results of the collection and analysis” are directed to an abstract idea. Electric Power, 830 F.3d at 1353. “Information as such is an intangible,” hence abstract, and “collecting information, including when limited to particular content (which does not change its character as information), [i]s within the realm of Appeal 2021-002982 Application 15/111,011 23 abstract ideas.” Id. (citing cases). So, too, is “analyzing information ... by mathematical algorithms, without more.” Id. at 1354 (citing cases, including Parker v. Flook, 437 U.S. 584, 98 S. Ct. 2522, 57 L.Ed.2d 451 (1978), and Gottschalk v. Benson, 409 U.S. 63, 93 S. Ct. 253, 34 L.Ed.2d 273 (1972)). And “merely presenting the results of abstract processes of collecting and analyzing information, without more (such as identifying a particular tool for presentation), is abstract as an ancillary part of such collection and analysis.” Id. (citing cases). The claims here are directed [to] abstract ideas under those principles. SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018). System claim 9 recites an interface configured to receive seismic data that is used in the mathematical algorithm, as well as at least one processor for performing the mathematical algorithm. Both of these structural elements are recited at a high-level of generality. The Specification teaches that the interface for receipt of seismic data and the at least one processor configured for performing the mathematical algorithm are part of a computer system for processing seismic data, wherein “one or more processors 702 can receive input seismic data 704 via input/output device(s) 706.” Spec. ¶¶ 12, 64. The method “may be implemented in a computer program, software, or firmware tangibly embodied in a computer readable storage medium for execution by a general purpose computer or a processor.” Id. ¶ 66. The Specification provides no detailed description for either the interface nor the processor, suggesting that neither imposes a meaningful limit on the judicial exception sufficient to integrate the judicial exception into a practical application. See 2019 Revised Guidance 55. Of dependent claims 2, 3, 5-8, 10, 11, and 13-16, only claims 8 and 16 recite an additional limitation that is not part of the abstract idea. In Appeal 2021-002982 Application 15/111,011 24 particular, claims 8 and 16 recite that the final pre-stack depth migrated seismic data is outputted when the exit criterion is satisfied, and an image of a subsurface is generated using this data output. Again, similarly to claims 1 and 9, such outputting of the results of the mathematical algorithm, followed by image generation from these results, is merely insignificant post-solution activity. Accordingly, we conclude that the claims 1-3, 5-11, and 13-16 recite a judicial exception, i.e., the abstract idea of a mathematical relationship for seismic data processing by joint inversion of the PP and PS seismic data as part of a nonlinear tomography process with a cost function based on RMOs and which adheres to one or more image co-depthing constraints, and do not integrate this judicial exception into a practical application. Step 2B: Inventive Concept Because we determine that claims 1-3, 5-11, and 13-16 recite an abstract idea and they do not include additional elements that integrate the abstract idea into a practical application, we look to whether each claim provides an inventive concept, i.e., adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field. 2019 Revised Guidance 56. Again, we find none. Although claim 9 recites an interface and a processor, these elements have been found to be well-understood, routine, and conventional when recited and disclosed, as here, at a high-level of generality. See TLI Commc’ns LLC v. AV Auto. LLC, 823 F.3d 607 (Fed. Cir. 2016). Indeed, neither the claims nor the Specification describes in any detail either the “interface” or the “processor,” but instead the Specification describes these elements as part of a general Appeal 2021-002982 Application 15/111,011 25 purpose computer system and, therefore, clearly encompass well- understood, routine, and conventional devices. Accordingly, we conclude that claims 1-3, 5-11, and 13-16 are directed to patent ineligible subject matter under 35 U.S.C. § 101. These claims ensnare the abstract idea of a mathematical relationship for seismic data processing by joint inversion of the PP and PS seismic data as part of a nonlinear tomography process with a cost function based on RMOs and which adheres to one or more image co-depthing constraints and do not recite additional elements that integrate this mathematical relationship or concept into a practical application. Further, implementing the abstract idea on a system comprising a generic data input interface and a generic processor does not transform it into a patentable apparatus; the idea remains a pre-empted mathematical concept. Alice, 573 U.S. 208, 216 (2014) (“We have described the concern that drives this exclusionary principle as one of pre-emption.”) (citing Bilski, 561 U.S. at 612 (“[U]pholding the patent ‘would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea.’”)). CONCLUSION Upon consideration of the record and for the reasons set forth above and in the Final Office Action and the Examiner’s Answer, the Examiner’s decision to reject claims 1, 2, 5-10, and 13-16 under 35 U.S.C. § 102(a)(1) as anticipated by Broto is affirmed. Appeal 2021-002982 Application 15/111,011 26 In addition, for the reasons given above and in accordance with 37 C.F.R. § 41.50(b), claims 1-3, 5-11, and 13-16 are newly rejected under 35 U.S.C. § 101 as directed to patent ineligible subject matter. DECISION SUMMARY The following table summarizes the outcome of each rejection: Claims Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed New Ground 1, 2, 5- 10, 13- 16 102(a)(1) Broto 1, 2, 5-10, 13-16 1-3, 5- 11, 13- 16 101 Eligibility 1-3, 5- 11, 13- 16 Overall Outcome 1, 2, 5-10, 13-16 1-3, 5- 11, 13- 16 TIME PERIOD FOR RESPONSE This decision contains a new ground of rejection pursuant to 37 CFR § 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37 CFR § 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 CFR § 41.50(b) also provides that Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating Appeal 2021-002982 Application 15/111,011 27 to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record. . . . AFFIRMED 37 C.F.R. § 41.50(b) Copy with citationCopy as parenthetical citation