Ex Parte Lehman et alDownload PDFPatent Trial and Appeal BoardFeb 11, 201511440810 (P.T.A.B. Feb. 11, 2015) 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. 11/440,810 05/25/2006 Lyle V. Lehman 2005-IP-017204U1 9063 7590 02/12/2015 Halliburton Energy Services, Inc. 2600 S. 2nd Street Duncan, OK 73536-0440 EXAMINER OSBORNE, LUKE R ART UNIT PAPER NUMBER 2123 MAIL DATE DELIVERY MODE 02/12/2015 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 LYLE V. LEHMAN and MOHAMED SOLIMAN ________________ Appeal 2012-007457 Application 11/440,810 Technology Center 2100 ________________ Before DENISE M. POTHIER, JEREMY J. CURCURI, and IRVIN E. BRANCH, Administrative Patent Judges. CURCURI, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1–22. App. Br. 6. We have jurisdiction under 35 U.S.C. § 6(b). Claims 1–22 are rejected under 35 U.S.C. § 102(b) as anticipated by Department of Energy - Hydraulic Fracturing White Paper, Appendix A, EPA 816-R-04-003 (June 2004) (hereafter “WP”). Ans. 4–12. We affirm. Appeal 2012-007457 Application 11/440,810 2 STATEMENT OF THE CASE Appellants’ invention relates to “[f]racture stimulation of a well.” Spec. 1:4. Claim 1 is illustrative and reproduced below: 1. A method for development of a naturally fractured formation, comprising: generating a computer implemented fracture model from a fracture treatment of a well in a naturally fractured formation comprising natural fractures; the fracture model simulating an effect of a proposed fracture treatment within the naturally fractured formation, the fracture model comprising an induced and natural fracture volume generated by the proposed fracture treatment; and determining at least one of a well spacing or a fracture treatment designed for one or more wells in the naturally fractured formation based on the fracture model. ANALYSIS Claims 1, 3–8, 10–19, 21, and 22 The Examiner finds WP describes all limitations of claim 1. Ans. 4–5. Appellants present the following principal arguments: i. “[T]he portions of White Paper relied-upon in the Office Action do not teach or suggest that any alleged ‘fracture model’ discussed in White Paper includes both induced and natural fracture volume generated by a proposed fracture treatment.” App. Br. 13 (underlining in original). ii. “First, the term ‘treatment volume’ does not suggest both natural and induced facture [sic] volume. Second, the Office Action does not show that the controlled data of ‘treatment volume’ is volume generated Appeal 2012-007457 Application 11/440,810 3 by a proposed fracture treatment, rather than, for example, a previously performed fracture treatment.” App. Br. 13. iii. Claim 1 recites that a fracture treatment is determined “based on the fracture model,” White Paper merely recites several criteria conventionally used to design a fracture treatment. None of which are a fracture model as recited in Claim 1. For instance, although the Office Action may allege that “total fluid volume pumped” teaches or suggests a volume encompassing both natural and induced fractures, one of ordinary skill in the art would recognize that total fluid volume pumped is often (indeed, usually) greater than a volumetric sum of natural and induced fractures. App. Br. 14. iv. “[T]he Office Action fails to show that White Paper was publicly available prior to the critical date, May 25, 2005.” App. Br. 15. We are not persuaded of any error in the Examiner’s findings. Regarding arguments (i) and (ii), we find these arguments unpersuasive. The Examiner explains “[t]he treatment volume as disclosed by White Paper includes both induced and natural fractures.” Ans. 13 (citing WP, A-2–A-4). That is, WP’s proposed treatment volume of treatment fluid corresponds to at least the induced (e.g., damaged coal seams) and natural fracture volume for a proposed fracture treatment. See id. The Examiner further explains “WP is primarily concerned with the fracture treatment of naturally fractured formations, which means that the treatment volume is a [treatment] volume of simulation of a fracture treatment containing natural fractures.” Ans. 13 (citing WP, A-2–A-4). We find the Examiner’s position reasonable, and Appellants’ Reply Brief does not point out any error in the Examiner’s position. We conclude Appeal 2012-007457 Application 11/440,810 4 that a broad, but reasonable interpretation of the claim language does not preclude a finding that WP describes the argued limitations. Thus, we see no reason why WP does not describe the recited fracture model comprising an induced and natural fracture volume generated by the proposed fracture treatment. Regarding argument (iii), we also find this argument unpersuasive. Even if total fluid volume pumped may be greater than a volume of natural and induced fractures, claim 1 recites (emphasis added), “the fracture model comprising an induced and natural fracture volume generated by the proposed fracture treatment.” Thus, the fact that the total fluid volume may be greater than a volume of natural and induced fractures does not preclude a finding that WP describes the argued limitations. Regarding argument (iv), we also find this argument unpersuasive. The Examiner explains, and we agree, that “[t]he listed publication date for the document is June 2004.” Additionally, using the wayback machine (i.e., http://web.archive.org/web/), the Examiner provides evidence that WP was publically accessible and available as of October 10, 2004.1 Ans. 15 (citing http://www.epa.gov/safewater/uic/cbmstudy/docs.html). On the record, the date when WP was publically accessible is at least October 10, 2004. Although Appellants present various arguments (see App. Br. 15–16) that WP may not have been publically available, Appellants do not present any evidence to rebut the Examiner’s findings. See generally Reply Br. 1 We performed an independent search of the link on the wayback machine website and located Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs at: https://web.archive.org/web/20041010093656/http://www.epa.gov/safewater /uic/cbmstudy/docs.html (last visited February 6, 2015). Appeal 2012-007457 Application 11/440,810 5 Weighing the Examiner’s evidence against Appellants’ naked arguments without further evidence, we find that on this record the Examiner has sufficiently established that WP was published by October10, 2004. We, therefore, sustain the Examiner’s rejection of claim 1, as well as claims 3–8, 10–19, 21, and 22, which are not argued separately with particularity. Claims 2, 9, and 20 The Examiner finds WP describes all limitations of claim 2. Ans. 5 (citing WP, A-4). The Examiner relies on WP’s use of production data to design a fracture treatment for describing the recited updating the fracture model based on production data from the well in the naturally fractured formation. Ans. 5 (citing WP, A-4). Appellants argue “this relied-upon discussion merely implies that production data from wells other than the well in which the proposed fracture treatment was executed may be used to design a fracture treatment.” App. Br. 17 (underlining in original); see also Reply Br. 1–4. We are not persuaded of any error in the Examiner’s findings. We adopt as our own the Examiner’s further explanation: The cited portion states that production data can be used. The Examiner finds it unreasonable that a person of ordinary skill in the art would come to the conclusion that Appellants are stating. That is that [] they would disregard the production data of the well having the fracture treatment designed and rather use production data from other wells. Ans. 16. Claim 2 recited “updating the fracture model based on production data Appeal 2012-007457 Application 11/440,810 6 from the well in the naturally fractured formation.” WP (A-4) (emphasis added) describes [t]he data used to design a fracture treatment can be obtained from a number of sources, such as drilling records, completion records, well files, open hole geophysical logs, cores and core analyses, well tests, production data, geologic records, and other public records, such as publications. We see no reason why WP does not describe the recited updating the fracture model (e.g., WP’s designing a fracture treatment) based on production data from the well in the naturally fractured formation (e.g., WP’s use of production data, particularly when the well is in the naturally fractured formation). We, therefore, sustain the Examiner’s rejection of claim 2, as well as claims 9 and 20, which recite similar limitations to claim 2 and are not argued separately with particularity. DECISION The Examiner’s decision rejecting claims 1–22 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED kme Copy with citationCopy as parenthetical citation