CONOCOPHILLIPS COMPANY

Patent Trials and Appeals Board

Dec 14, 2021

2021000567 (P.T.A.B. Dec. 14, 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. 15/210,333 07/14/2016 James J. HOWARD 41762US02 1102 85937 7590 12/14/2021 Boulware & Valoir Tamsen Valoir 2603 Augusta Drive Suite 1350 Houston, TX 77057 EXAMINER HAGOS, EYOB ART UNIT PAPER NUMBER 2864 NOTIFICATION DATE DELIVERY MODE 12/14/2021 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): mwhite@boulwarevaloir.com nseigel@boulwarevaloir.com patent@boulwarevaloir.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JAMES J HOWARD and GARY LOVELL ____________ Appeal 2021-000567 Application 15/210,333 Technology Center 2800 ____________ Before JAMES C. HOUSEL, DONNA M. PRAISS, and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL The Appellant1 requests review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 13-17.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 “Appellant” refers to the “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies ConocoPhillips Company as the real party in interest. Appeal Brief filed May 26, 2020 (“Appeal Br.”), 3. 2 Final Office Action entered January 31, 2020 (“Final Act.”), 1. Appeal 2021-000567 Application 15/210,333 2 CLAIMED SUBJECT MATTER The Appellant claims a method for improving enhanced oil recovery (EOR) from a hydrocarbon reservoir that comprises, in part, obtaining a reservoir rock sample, obtaining scanning electron microscopy (SEM) image data in back-scattered electron (BSE) mode of the reservoir rock sample, obtaining energy dispersive spectral (EDS) data of the reservoir rock sample, and generating a mineral map by combining the SEM image data and the EDS data on an individual pixel basis. Appeal Br. 6-8. Claim 13, the sole pending independent claim, illustrates the subject matter on appeal, and reads as follows: 13. A method for improving enhanced oil recovery (EOR) from a hydrocarbon reservoir, said method comprising: a) obtaining one or more reservoir rock sample(s) from a reservoir of interest; b) obtaining scanning electron microscopy (SEM) image data in back-scattered electron (BSE) mode of said reservoir rock sample(s); c) obtaining energy dispersive spectral (EDS) data of said reservoir rock sample(s); d) generating a mineral map by combining said SEM image data and said EDS data on an individual pixel basis; e) assigning a chemical mineralogy of each pixel in said mineral map; f) determining a spatial profile of chemical mineralogy of one or more pore walls in said reservoir rock sample(s); g) evaluating said reservoir rock sample(s) in one or more laboratory EOR test(s); h) identifying a composition of one or more critical region(s) of pore walls by comparing said spatial profile with results from said evaluating step g; i) forecasting oil recovery for a plurality of EOR methods using a reservoir model for one or more regions in said reservoir having a same critical region of pore walls Appeal 2021-000567 Application 15/210,333 3 composition as said reservoir rock sample(s) from said identifying step h; j) selecting an optimal EOR method based on a best forecasted oil recovery from step i; and k) using said optimal EOR method from selecting step j to produce hydrocarbon from said reservoir. Appeal Br. 15 (Claims Appendix) (emphasis added). REJECTIONS The Examiner maintains the following rejections in the Examiner’s Answer entered September 23, 2020 (“Ans.”): I. Claims 13 and 15-17 under 35 U.S.C. § 103 as unpatentable over Howard3 in view of Owen4 and Safonov;5 and II. Claim 14 under 35 U.S.C. § 103 as unpatentable over Howard in view of Owen, Safonov, and Alshehri.6 FACTUAL FINDINGS AND ANALYSIS Upon consideration of the evidence relied upon in this appeal and each of the Appellant’s contentions, we reverse the Examiner’s rejections of claims 13-17 under 35 U.S.C. § 103 for reasons set forth in the Appeal and Reply Briefs, and below. The Examiner finds that Howard discloses a method for improving enhanced oil recovery (EOR) from hydrocarbon reservoirs that comprises a) obtaining one or more reservoir rock sample(s) from a reservoir of interest, 3 James J. Howard & Gary L. Lovell, Mineral Distribution in Reservoir Rocks and Its Impact on Enhanced Oil Recovery, Int’l Symposium of the Soc’y of Core Analysts, 1-6 (2011). 4 US 2015/0122992 A1, published May 7, 2015. 5 US 2016/0063150 A1, published March 3, 2016. 6 US 2016/0077023 A1, published March 17, 2016. Appeal 2021-000567 Application 15/210,333 4 b) obtaining scanning electron microscopy (SEM) image data in back- scattered electron (BSE) mode of the reservoir rock sample(s), and c) obtaining energy dispersive spectral (EDS) data of the reservoir rock sample(s). Final Act. 7 (citing Howard pp. 1-3). The Examiner finds that Howard does not disclose d) generating a mineral map by combining the SEM image data and the EDS data on an individual pixel basis. Final Act. 8. The Examiner finds, however, that Owen discloses using SEM-EDS (scanning electron microscopy-energy dispersive spectral) systems to obtain and analyze x-ray emission spectra from mineral samples in order to determine the composition of the samples. Ans. 7 (citing Owen Abstr., ¶ 2). The Examiner finds that Owen discloses that using SEM-EDS systems for such purposes involves raster scanning a mineral sample via an electron beam, recording x-ray emission spectra on a per pixel basis, and analyzing the emission spectra to assign a single mineral to each pixel. Ans. 7-8 (citing Owen Abstr., ¶ 2). The Examiner finds that Owen further discloses mineral identification system 200 used for raster scanning a mineral sample with a scanning electron microscope (SEM) and performing mineral identification on a per pixel basis. Ans. 8 (citing Owen ¶¶ 26, 27, 29, 51; Figs. 1, 4). The Examiner finds that Owen discloses that electron beam system 241 of mineral identification system 200 deflects an electron beam 232 across sample 202, x-rays characteristic of the elements in sample 202 are emitted from sample 202, and x-ray detector 240 detects the x-rays and outputs a signal indicative of the energy of the detected x-rays. Id. The Examiner finds that Owen’s Figure 4 “is a flow chart depicting a method for Appeal 2021-000567 Application 15/210,333 5 generating mineral combinations used to identify the mineral composition of a raster scanned, fine grained, mineral sample.” Ans. 8. The Examiner finds that the above disclosures in Owen correspond to element d) recited in claim 13 of “generating a mineral map by combining said SEM image data and said EDS data on an individual pixel basis.” Ans. 7-8. On the record before us, however, for reasons expressed by the Appellant and discussed below, the Examiner does not provide a sufficient factual basis to establish that Owen discloses or would have suggested “generating a mineral map by combining said SEM image data and said EDS data on an individual pixel basis” as recited in claim 13. According to the Appellant’s Specification, microscopy techniques allow scientists and engineers to analyze the composition and topography of hydrocarbon-containing rock formations (or reservoirs). Spec. ¶¶ 3, 4. The Specification explains that a scanning electron microscope (SEM) can be used to scan a reservoir rock sample with a focused, high-energy beam of electrons, and the electrons interact with atoms in the sample to produce back-scattered electrons and x-rays. Spec. ¶¶ 4-7. The Specification indicates that sensors in the microscope detect the back-scattered electrons, generating images that reflect the atomic number or composition of the sample. Spec. ¶¶ 5-7. The Appellant and the Specification further explain that an energy-dispersive spectrometer (EDS) attached to the scanning electron microscope can be used to measure the number and energy of x- rays emitted from the sample, allowing determination of the sample’s elemental composition. Appeal Br. 5; Spec. ¶¶ 10, 11. Appeal 2021-000567 Application 15/210,333 6 The disclosures in Owen identified by the Examiner describe scanning a mineral sample with an electron beam of a scanning electron microscope (SEM), and detecting and analyzing x-rays emitted from the sample to identify the sample’s composition on a per pixel basis. One of ordinary skill in the art would have understood these disclosures to correspond to obtaining energy dispersive spectral (EDS) data of a rock sample on a per pixel basis, consistent with the description in the Appellant’s Specification discussed above of using an energy-dispersive spectrometer (EDS) to analyze x-rays emitted from a sample after scanning the sample with an electron beam of a scanning electron microscope (SEM). In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (explaining that there is no ipsissimis verbis test for determining whether a reference discloses a claim element, i.e., identity of terminology is not required). The Examiner does not identify any disclosure in Owen, however, of obtaining scanning electron microscopy (SEM) image data in back-scattered electron (BSE) mode of a reservoir rock sample. The portions of Owen identified by the Examiner describe detecting and analyzing only x-rays emitted from a mineral sample after scanning the sample with a scanning electron microscope, and the identified disclosures do not describe detecting back-scattered electrons emitted from a mineral sample. As the Appellant argues (Reply Br. 3), the Examiner appears to confuse using a scanning electron microscope to scan a mineral sample with an electron beam, and detecting and analyzing x-rays emitted from the sample (energy dispersive spectral (EDS) data), with using a scanning electron microscope to scan a rock sample with an electron beam, and detecting and analyzing back-scattered electrons emitted from the sample Appeal 2021-000567 Application 15/210,333 7 (scanning electron microscopy (SEM) image data in back-scattered electron (BSE) mode). As a consequence, on the record before us, the Examiner does not identify any disclosure in Owen that teaches or would have suggested “generating a mineral map by combining said SEM image data and said EDS data on an individual pixel basis” as recited in claim 13. Because the Examiner does not rely on Howard and Safonov for any disclosure that remedies the deficiencies in the Examiner’s reliance on Owen, the Examiner does not establish that the combined disclosures of Howard, Owen, and Safonov disclose or would have suggested all the elements of claim 13. We, accordingly, do not sustain the Examiner’s rejection of claim 13, and rejections of claims 14-17, which each depend from claim 13, under 35 U.S.C. § 103. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 13, 15-17 103 Howard, Owen, Safonov 13, 15-17 14 103 Howard, Owen, Safonov, Alshehri 14 Overall Outcome 13-17 REVERSED