Ex Parte Fleischer-Pedersen

Patent Trial and Appeal Board

Aug 31, 2017

13276889 (P.T.A.B. Aug. 31, 2017)

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.
13/276,889 10/19/2011 Knut-Birger Fleischer-Pedersen PGS-10-49US 5072
136970 7590 09/05/2017
Law Office of Richard A. Fagin
P.O. Box 593128
San Antonio, TX 78259
EXAMINER
RIVERA-CORDERO, ARLYN I
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
09/05/2017 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):
faginr@xp-patents.com
docketing@pgs.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KNUT-BIRGER FLEISCHER-PEDERSEN
Appeal 2016-000903
Application 13/276,889
Technology Center 1700
Before MARKNAGUMO, JAMES C. HOUSEL, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35U.S.C. § 134 from the Examiner’s July
29, 2014 decision finally rejecting claims 17—21. We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).
We reverse.
1 Appellant states that the real party in interest is PGS GEOPHYSICAL AS.
(Appeal Br. 3).
Appeal 2016-000903
Application 13/276,889
CLAIMED SUBJECT MATTER
Appellant’s invention generally relates to a method for cleaning a survey
cable which includes moving a cleaning tool along a survey cable, lifting the
survey cable to a surface of a body of water, and rotating two or more scraper
wheels against the survey cable (Abstract). Claim 17 is representative and is
reproduced below from the Claims Appendix of the Appeal Brief (emphasis
added):
17. A survey cable cleaning method comprising:
moving a cleaning tool along a survey cable deployed in a
body of water;
lifting the survey cable to a surface of the body of water, and
rotating two or more scraper wheels against the survey cable.
REJECTIONS
I. Claims 17 and 19-21 are rejected under pre-AIA 35
U.S.C. § 102(b) as being anticipated by Hoogeveen.2
II. Claim 18 is rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Hoogeveen in view of Lepage.3
DISCUSSION
“A prior art reference anticipates a patent claim under 35 U.S.C.
§ 102(b) if it discloses every claim limitation.” In re Montgomery, 677 F.3d
1375, 1379 (Fed. Cir. 2012) (citing Verizon Servs. Corp. v. Cox Fibernet
Va., Inc., 602 F.3d 1325, 1336—37 (Fed. Cir. 2010)). In this instance, with
regard to independent claim 17, Appellant argues that Hoogeveen does not
2 Hoogeveen et al., US 7,409,919 B2, issued August 12, 2008.
3 Lepage et al., US 2006/0054186 Al, published March 16, 2006.
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Appeal 2016-000903
Application 13/276,889
disclose a method which includes “lifting the survey cable to a surface of the
body of water” (Appeal Br. 9). Thus, the dispositive issue on appeal is
whether Hoogeveen discloses this step. This resolution of this issue, in turn,
depends on the meaning of the phrase “lifting the survey cable to a surface,”
as will be discussed in more detail below.
Hoogeveen is directed to a cleaning device for a seismic streamer4
which is rotationally driven by movement of the streamer through a body of
water (Hoogeveen, Abstract). As illustrated in the following annotated
version of Hoogeveen’s FIG. 1, seismic streamer 10 is towed by seismic
vessel 18 near the surface of a body of water 16:
r22
FIG. 1
Hoogeveen’s FIG. 1 shows one embodiment of its streamer cleaning device
as it is typically used on a seismic streamer.
4 The Examiner finds that the Hoogeveen’s seismic streamer corresponds to
the claimed survey cable (Final Act. 3). Appellant does not dispute this
finding.
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Appeal 2016-000903
Application 13/276,889
The Examiner finds that Hoogeveen discloses that the seismic
streamer is lifted to a surface of the body of water (Final Act. 3, citing
Hoogeveen 2:51—53). Hoogeveen also states that its streamer is towed “near
the surface of a body of water 16” (Hoogeveen, 3:12—15). The Examiner
construes the phrase “to a surface of the body of water” as including “near”
the surface:
“Based on the definition of near, lifting the seismic [streamer]
near the surface of the water reads on lifting the survey cable to
a surface of the body of water as claimed.”
(Ans. 4). Accordingly, we must construe the phrase “lifting the survey cable
to a surface of the body of water,” and then determine whether it reads on
Hoogeveen’s disclosure.
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.
To the extent possible, claim terms are given their ordinary and
customary meaning, as they would be understood by one of ordinary skill in
the art in question at the time of the invention. Phillips v. AWH Corp., 415
F.3d 1303, 1312-13 (Fed. Cir. 2005) (enbanc). Idiosyncratic language,
highly technical terms, or terms coined by the inventor are best understood
by reference to the specification. Id. at 1315-16. Extrinsic evidence such as
dictionary definitions may be utilized when construing claim terms, so long
as the extrinsic evidence does not contradict any definition found in the
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Appeal 2016-000903
Application 13/276,889
specification, including the claims and written description. Cf. Advanced
Fiber Tech. (AFT) Trust v. J&L Fiber Servs., Inc., 674 F.3d 1365, 1374-75
(Fed. Cir. 2012) (internal citations omitted).
In this instance, the Specification describes how, in at least one
embodiment, the survey cable is lifted “clear of the water” prior to being
contacted with the scraper mechanism (Spec. 117). Fig. 1 also shows cable
24A being lifted out of the water by workboat 42 in order to be cleaned
(Spec. 116). The Specification also states that the workboat lifts the survey
cable “to or above the water’s surface” in conducting the cleaning operation
(Spec. 134).
Therefore, in light of the disclosure in the Specification, we determine
that “lifting the survey cable to a surface of the body of water” means that
the cable is raised from a lower level in the water up to the surface.
The Examiner determines that because the definition of “near” is “at
or within,” and Hoogeveen discloses that its seismic cable is located “near
the surface of a body of water” (3:12—15), “lifting the seismic [streamer]
near the surface of the water reads on lifting the survey cable to a surface of
the body of water as claimed” (Ans. 4). However, the portion of Hoogeveen
relied on by the Examiner as disclosing the “lifting” of the seismic streamer
(Final Act. 3; Ans. 2) does not mention lifting or raising the streamer, but
merely describes towing the streamer through the water: “A method for
cleaning a marine streamer according to another aspect of the invention
includes towing the streamer through a body of water” (Hoogeveen 2:51—
53).
The Examiner correctly notes (Ans. 4) that claim 17 does not require
that the entire survey cable be lifted to the surface. However, the Examiner
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Application 13/276,889
has not identified persuasive evidence in Hoogeveen that any portion of the
seismic streamer is lifted. While Hoogeveen’s FIG. 1 does show a portion
the seismic streamer (attached to the boat towing the array) at the surface, it
does not have any teaching or disclosure of lifting (i.e. raising) any portion
to the surface as part of the cleaning method. Moreover, as discussed in
some detail by Appellant (Reply Br. 3), Hoogeveen’s cleaning tool is
actually designed to operate below the surface of the water, which would not
lead one of skill in the art to seek to raise the streamer to the surface for
cleaning.
Thus, the preponderance of the evidence does not support the
Examiner’s finding that Hoogeveen discloses “lifting the survey cable to a
surface of the body of water.” Accordingly, we reverse the anticipation
rejection of claims 17 and 19—21. With regard to the obviousness rejection
of claim 18, the Examiner does not make any additional findings with
regards to the “lifting” limitation, mandating reversal of that rejection as
well.
CONCLUSION
We REVERSE the rejection of claims 17 and 19—21 under pre—AIA
35 U.S.C. § 102(b) as being anticipated by Hoogeveen.
We REVERSE the rejection of claim 18 under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Hoogeveen and
Lepage.
REVERSED
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