Ex Parte POOLE

Patent Trial and Appeal Board

Oct 5, 2018

13913630 (P.T.A.B. Oct. 5, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/913,630 06/10/2013 Gordon POOLE
11171 7590 10/10/2018
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0336-179-2/100358 4940
EXAMINER
ARMSTRONG, JONATHAN D
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
10/10/2018 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 GORDON POOLE
Appeal2018-000292
Application 13/913,630
Technology Center 3600
Before MICHAEL L. HOELTER, FREDERICK C. LANEY, and
PAUL J. KORNICZKY, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner's Final Rejection of claims 1-20. Final Act. 1 (Office Action
Summary). We have jurisdiction under 35 U.S.C. § 6(b ). For the reasons
explained below, we find error in the Examiner's rejections.
Accordingly, we REVERSE.
THE CLAIMED SUBJECT MATTER
The disclosed subject matter relates "to methods and systems and,
more particularly, to mechanisms and techniques for geophysical exploration
using two or more vessels generating seismic waves in proximity to each
Appeal2018-000292
Application 13/913,630
other." Spec. ,r 1. Method claims 1 and 18, and system claim 10, are
independent. Claim 1 is illustrative of the claims on appeal and is
reproduced below.
1. A method for acqmnng se1sm1c data, the method
compnsmg:
deploying first and second seismic vessels having first and
second seismic sources, respectively;
separating the first and second seismic sources from each
other by establishing a predetermined calculated cross-line offset
distance d between traveling paths of the first and second seismic
vessels;
towing the first and second seismic sources across a region
while maintaining the predetermined distance d;
shooting the first and second seismic sources; and
recording seismic signals corresponding to the first and
second seismic sources,
wherein the predetermined distance d is calculated so that
first seismic signals, corresponding to the first source, are
recorded during an actual recording portion of a seismic record
while second seismic signals, corresponding to the second
source, are recorded during a recording lag portion of the seismic
record, the recording lag portion being later in time than the
actual recording portion, and
wherein the recording lag portion corresponds to a time
interval during which the first source is not ready to shoot.
REFERENCES RELIED ON BY THE EXAMINER
Manin
Deal
Moore et al.
us 5,424,999
US 6,674,688 Bl
US 2010/0271904 Al
June 13, 1995
Jan. 6, 2004
Oct. 28, 2010
Jack Bouska, Geophysical Prospecting, 2009 (hereinafter "Bouska").
IAGC, "An Overview of Marine Seismic Operations," International
Association of Geophysical Contractors, Report No. 448, Apr. 2011
(hereinafter IAGC).
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THE REJECTIONS ON APPEAL
Claims 1-20 are rejected under 35 U.S.C. § 112(a) as failing to
comply with the written description requirement.
Claims 1-7, 10-15, and 18-20 1 are rejected under 35 U.S.C. § 103 as
unpatentable over Moore, Manin, and Deal.
Claims 8, 9, 16, and 17 are rejected under 35 U.S.C. § 103 as
unpatentable over Moore, Manin, Deal, and Bouska.
ANALYSIS
The rejection of claims 1-20
as failing to comply with the written description requirement
The Examiner addresses independent claims 1, 10, and 18, and
particularly the limitation "establishing a ... distanced" which each claim
recites. Final Act. 3. The Examiner states that "receiver depth" is not
"accounted for in [the] calculation of' "distance d." Final Act. 3. The
Examiner also addresses such items as "depth of the subsurface of interest"
and "ray path #606" and #604 (Spec. Fig. 6) and how they "do[] not
correspond to the distance 'd' shown in Fig. 6 and 'd' discussed in [0034]."
Final Act. 4.
Appellant responds that the Examiner's "argument asserts a feature as
being in the claims ( although the claims do not recite such feature) and then
concludes that the specification does not disclose this feature." Br. 24.
Appellant also points out that "the final Office Action does not assert that
this specific feature [i.e., "distanced"] is not supported by the specification.
1 The Examiner only lists claims 19 and 20, but the body of the rejection
also addresses claim 18.
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The final Office Action appears to suggest, on pages 3 to 6, that this feature
is somehow wrong." Br. 22.
We agree with Appellant's assessment. "Distanced" is readily
disclosed in Appellant's Specification and drawings. See Specification
generally. The Examiner is not disputing the various illustrations/discussion
of "distance d", but instead submits "that too many questions are left up to
the public to guess at the metes and bounds of the instant claim 1." Final
Act. 6. However, the Examiner's rejection is not predicated on a lack of
enablement, but instead is predicated on a lack of written support. Final Act.
2. On this point, we are informed that "an inventor need not explain every
detail because a patent is read by those of skill in the art." Wellman, Inc. v.
Eastman Chem. Co., 642 F.3d 1355, 1367 (Fed. Cir. 2011). We are further
informed that, as regarding a lack of written support, "the test requires an
objective inquiry into the four comers of the specification from the
perspective of a person of ordinary skill in the art. Based on that inquiry, the
specification must describe an invention understandable to that skilled
artisan and show that the inventor actually invented the invention claimed,"
i.e., "that the inventor had possession of the claimed subject matter as of the
filing date." Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co., 598 F.3d 1336,
1351 (Fed. Cir. 2010) (en bane).
Regarding "distanced," we are of the opinion that one skilled in the
art would, upon reading Appellant's Specification (including a review of the
drawings), both understand "distance d" and also realize that the inventor
has provided sufficient written description support for the limitation
"establishing a ... distanced." In short, we are of the opinion that, based on
the application, Appellant not only described the invention in a manner
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"understandable to" one skilled in the art, but also that Appellant was in
possession of that which is claimed. Accordingly, and based on the record
presented, we reverse the Examiner's rejection of claims 1-20 "as failing to
comply with the written description requirement." Final Act. 2.
The rejection of claims 1-7, 10-15, and 18-20
as unpatentable over Moore, Manin and Deal
The Examiner relies on Moore for teaching many of the recited
limitations, but states, "Moore implies but does not explicitly teach wherein
the predetermined distanced is calculated." Final Act. 8; see also Ans. 4.
Augmenting this, the Examiner further states, "Manin teaches wherein the
predetermined distanced is calculated." Final Act. 9; see also Ans. 4. The
Examiner reasons that it would have been obvious "to incorporate into the
invention of Moore, the teaching of Manin," and provides a reason to do so.
Final Act. 9.
However, regarding the final limitation of the "lag portion
corresponds to a time interval during which the first source is not ready to
shoot," the Examiner relies on Deal for this disclosure. Final Act. 9-10
(referencing Deal 3:40-60); see also Ans. 5. The Examiner states, "[i]t
would have been obvious to incorporate into the invention of Moore, the
teaching of Deal because seismic air guns can take as long as ten seconds to
recharge/re-pressurize (IAGC) [Pg. 11, Sec. Compressor room]." Final Act.
10.
Appellant states that the Examiner's rejection of the independent
claims "relies only on Moore, Manin and Deal, and not IAGC." Br. 14. On
this point (i.e., the Examiner relying on a non-cited reference), the
predecessor to our reviewing court affirmed a decision by the Board which
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approved the use of non-referenced art but stated that "if we did not find the
rejections based solely on [the referenced art] to be sound, we might well
feel constrained to reverse the decision of the board." In re Hoch, 428 F.2d
1341, 1342, n3 (CCPA 1970). This omission by the Examiner suggests that
Appellant was not afforded a fair opportunity to react to the thrust of the
Examiner's rejection. See In re Jung, 637 F. 3d 1356, 1365 (Fed. Cir. 2011)
("It is well-established that the Board is free to affirm an examiner's
rejection so long as 'appellants have had a fair opportunity to react to the
thrust of the rejection."') (citing In re Kronig, 539 F.2d 1300, 1302-03
(CCPA 1976)).
However, even presuming that Appellant had been properly informed
of the Examiner's reliance on the IAGC reference, the Examiner does not
indicate how IAGC' s disclosure of a 10 second recharge time for seismic
source elements ties into the teachings of Deal, and more particularly, that
the recited lag portion corresponds "to a time interval during which the first
source is not ready to shoot." This is because the recited portion of Deal
(see Final Act. 9), and Deal in general (see Ans. 5), pertains to the receipt of
data at the recorder, not the recharging of any signal source as disclosed in
IAGC. More specifically, the Examiner relies on Deal as acknowledging
"that seismic sources/air guns must be recharged" but fails to identify where
such acknowledgement can be found in Deal. Ans. 5. Perhaps the Examiner
is relying on the relatively quiet "time window" 14 between Deal's
interference pulses 12 (see Deal Fig. 1 ), but it is only conjecture that Deal's
quiet period is due to the source not being ready to shoot, as recited. The
Examiner also contends that Deal's "method acquires seismic data using an
acoustic source capable of producing a seismic signal." Ans. 5. We do not
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dispute that Deal' s source is "capable of' producing a seismic signal, but the
Examiner does not make clear how any teaching of a source being so
capable is somehow transformed into a teaching of a signal that
"corresponds to a time interval during which the first source is not ready to
shoot," as recited.
Furthermore, addressing Moore, Appellant contends "Moore teaches
the use of Signal Processing, and not Physical Source Separation, to
Separate the signals from two vessels." Br. 8. This is because, Moore
"develops models to separate a composite seismic signal produced by the
firing of multiple seismic signals." Br. 8 (referencing Moore ,r 24). Moore
acknowledges that "the seismic sources interfere with each other such that
the composite energy signal is not easily separable into signals that are
attributed to the specific source." Moore. ,r 24. Moore thus proposes a
method by which, afterwards, "linear operator transforms are used for
purposes of decomposing the composite energy signal into signals that are
each uniquely associated with a particular seismic source." Moore ,r 28. In
short, the Examiner does not satisfactory explain how Moore teaches
(whether expressly or implicitly) the claimed recording of signals from a
first source "during an actual recording portion" and the recording of signals
from a second source "during a recording lag portion" wherein "the
recording lag portion being later in time than the actual recording portion."
In short, as per Appellant, "Moore does not describe or teach a system that
utilizes separated recording portions of a seismic record." Br. 9.
Regarding Manin, Appellant contends, "Manin states in the abstract
that processing and not calculated physical source separation is used to
separate the recorded data." Br. 11. There is a basis for Appellant's
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contention because Manin teaches, "after which the recorded seismic traces
are processed as a function of the space-time coordinates of the point source
of noise in order to eliminate said undesirable signal. In this way, each ship
implementing the method of the invention can eliminate the undesirable
industrial noise signals corresponding to the seismic shots of the other
ship(s)." Manin 2: 1-9. Thus, we agree with Appellant that "Manin is
similar to Moore" in that "signal processing techniques are used" to separate
the received data and further that Manin does not teach calculating the
recited distance 'd' "in order to prevent signal interference." Br. 11.
Accordingly, and based on the record presented, we are not persuaded
the Examiner has established by a preponderance of the evidence that claims
1-7, 10-15, and 18-20 have been rendered obvious over the combination of
Moore, Manin, and Deal (with or without IAGC). We do not sustain their
rejection.
The rejection of claims 8, 9, 16, and 17
as unpatentable over Moore, Manin, Deal, and Bouska
Regarding claims 8 and 16, The Examiner relies on the additional
reference to Bouska for teaching "calculating a predetermined distance d
based [on] the selected time length of the actual recording portion" and other
parameters. Final Act. 13. However, the Examiner still relies on the
teachings of Moore, discussed above, as rendering these additional claims
obvious. Final Act. 13; see also Ans. 5---6. Appellant also contends that
none of the parameters recited in Bouska correspond to the recited "depth of
the ocean bottom" ( or "a speed of sound in water") because Bouska is
directed to "land seismic data acquisition and not marine seismic data
acquisition." Br. 19. In other words, "Bouska cannot consider the depth of
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the ocean bottom because there is no ocean to talk about." Br. 19. Indeed,
Bouska discusses the use of "onshore" vibrators (Bouska pg. 124, col. 2)
with the study area being "the desert conditions in Oman b lock-61" (Bouska
pg. 146, col. 2). See also Bouska Fig. 11 described as a satellite image of
"Block 61, in the interior of Oman."
Regarding claims 9 and 17, Appellant presents a similar argument
since these dependent claims address "a speed of sound in water" and such a
value is not employed in Bouska's land-based system. See Br. 20.
The Examiner does not refute Appellant's assertion above, but instead
states that "distance may be found from the product of speed of sound and
time" and that "[ t ]his is nothing but straightforward algebra/ geometry."
Ans. 6. In effect, the Examiner is asking us to read into a reference a
teaching of water-based variables when none are disclosed therein. We
decline to do so.
Accordingly, and based on the record presented, we do not sustain the
Examiner's rejection of claims 8, 9, 16, and 17 as being obvious over
Moore, Manin, Deal, and Bouska (with or without IAGC).
DECISION
The Examiner's rejection of claims 1-20 as failing to comply with the
written description requirement is reversed.
The Examiner's art rejections of claims 1-20 are reversed.
REVERSED
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