Jennifer A. Market

Patent Trials and Appeals Board

Dec 10, 2019

12595294 - (D) (P.T.A.B. Dec. 10, 2019)

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.
12/595,294 05/23/2011 Jennifer A. Market 164.2007-IP-022741 US 2036
138627 7590 12/10/2019
Gilliam IP PLLC (Halliburton)
7200 N. Mopac
Suite 440
Austin, TX 78731
EXAMINER
ALKAFAWI, EMAN A
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
12/10/2019 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):
uspto@gilliamip.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JENNIFER A. MARKET
____________

Appeal 2018-006779
Application 12/595,294
Technology Center 2800
____________

BEFORE CATHERINE Q. TIMM, MICHAEL P. COLAIANNI, and
MICHAEL G. McMANUS, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1, 3–6, and 8–21. We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

STATEMENT OF THE CASE
The invention relates to a method and apparatus for well logging and
drilling tools to provide an acoustic profile of rock formations (Spec. ¶ 1).

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Halliburton Energy Services, Inc. as the
real party in interest (Appeal Br. 3).
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Independent claims 1, 6, and 13, reproduced below from the Claims
Appendix to the Appeal Brief, are illustrative of the subject matter on
appeal.
1. A method comprising:
transmitting acoustic signals from a tool in a borehole;
receiving the transmitted acoustic signals at a receiver array to provide a set
of received time signals;
performing a frequency semblance on the set of received time signals
to provide a set of semblance values as a function of slowness and
wavelength; and
providing a radial distance profile of slowness based upon the set of
semblance values.

6. An apparatus comprising a processing system to perform steps
comprising:
perform a frequency semblance on a set of acoustic signals r(t; i), i =
1, 2, ..., n, received at a tool in a borehole, where n is an integer and t is a
time index, to provide a set of semblance values C(ω;s) in (ω,s) coordinate
space, where ω frequency (in radians) and s is slowness;
provide a set of semblance values Ĉ(λ;s) in (λ;s) coordinate space,
where λ is wavelength
and where Ĉ(λ; s) = C(ω; s)]ω =2π/λs; and
provide a radial distance profile of slowness based upon the set of
semblance values
Ĉ(λ;s) and a function mapping wavelength to radial depth.

13. An apparatus, comprising:
a downhole tool including,
at least one acoustic transmitter arranged to transmit acoustic signals
into formations surrounding a borehole, and
a plurality of acoustic receivers arranged to receive the acoustic
signals after they pass through the formations;
a processing system for,
performing a frequency semblance on a set of acoustic signals r(t; i), i = 1,
2,..., n, received at a tool in the borehole, where n is an integer and t is a time
index, to provide a set of semblance values C(ω;s) in (ω,s) coordinate space,
where ω frequency (in radians) and s is slowness;
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providing a set of semblance values Ĉ(λ;s) in (λ;s) coordinate space, where λ
is wavelength and where Ĉ(λ; s) = C(ω; s)]ω =2π/λs;
and
providing a radial distance profile of slowness based upon the set of
semblance values Ĉ(λ;s) and a function mapping wavelength to
radial depth.

The prior art relied upon by the Examiner is:
Name Reference Date
Blanch US 2003/0018433 A1 Jan. 23, 2003
Dubinsky US 6,427,124 B1 July 30, 2002

Appellant appeals the following rejections:
1. Claims 1, 3, 4, 6, 8–16, and 19–21 under 35 U.S.C. § 101 as
directed to patent ineligible subject matter.
2. Claims 1, 3, 6, 8–10, 13–16, and 19–21 under 35 U.S.C. § 102(b)
as unpatentable over Blanch.
3. Claims 4, 5, 11, 12, 17, and 18 under 35 U.S.C. § 103(a) as
unpatentable over Blanch in view of Dubinsky.
35 U.S.C. § 101 Rejection
The Examiner maintains the rejection of claims 1, 3, 4, 6, 8–16, and
19-21 under 35 U.S.C. § 101 as being directed to patent ineligible subject
matter. The Examiner’s findings and conclusions regarding the § 101
rejection are located on pages 2 to 5 of the Final Action.
The Examiner determines that claims 1, 6 and 13 are directed to the
abstract idea of “performing a frequency semblance on the set of received
time signals to provide a set of semblance values as a function of slowness
and wavelength; and providing a radial distance profile of slowness based
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upon the set of semblance values.” (Final Act. 2). The Examiner finds that
claim 6 is directed to the abstract idea of
perform a frequency semblance on a set of acoustic signals r(t;
i), i = 1, 2, ... , n, received at a tool in a borehole, where n is an
integer and t is a time index, to provide a set of semblance
values C(ω;s) in (ω,s) coordinate space, where ω is frequency
(in radians) and s is slowness; provide a set of semblance values
C(λ;s) in (λ;s) coordinate space, where λ is wavelength, provide
a radial distance profile of slowness based upon the set of
semblance values C(λ;s) and C(λ, s)= C(ω,s)} w=2pt/ λ s and a
function mapping wavelength to radial depth.

(Final Act. 3).
Regarding claim 13, the Examiner finds that the claim is directed to
the abstract idea of
performing a frequency semblance on a set of acoustic signals
r(t; i), i = 1, 2, ... , n, received at a tool in a borehole, where n is
an integer and t is a time index, to provide a set of semblance
values C(ω; s) in (ω, s) coordinate space, where ω is frequency
(in radians) and s is slowness; providing a set of semblance
values C(λ;s) in (λ;s) coordinate space, where λ is wavelength
and where [missing equation]; and providing a radial distance
profile of slowness based upon the set of semblance values
C(λ;s) and a function mapping wavelength to radial depth.
(Final Act. 3–4).
The Examiner finds that the claim merely implements a set of
instructions in a computerized system and the radial profile is output data
resulting from performing the first set of instructions in the computerized
system (Final Act. 2–3, 4). The Examiner finds that the additional claim 1
limitations (e.g., transmitting acoustic signals from a tool in a borehole and
receiving the signal at a receiver array) do not amount to significantly more
than the judicial exception because the limitations are merely data collection
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which is mere extra solution activity necessitated by the process and
implemented on conventional devices cited at a high level of generality
(Final Act. 4). The Examiner finds that claim 13 limitations that recite a
downhole tool including an acoustic transmitter and a plurality of acoustic
receivers are merely generic and conventional devices cited at a high level of
generality and used to collect data (Final Act. 4–5). The Examiner finds that
claims 6 and 13 recite a “processing system” which is the same as adding the
words “apply it” with a computer in conjunction with the abstract idea (Final
Act. 5).
Appellant argues that the Examiner’s overly-broad characterization of
the claim as merely data processing ignores meaningful limitations that are
not abstract (Appeal Br. 7). Appellant contends that claim 1 recites a tool
specifically positioned in a borehole for transmitting acoustic signals and a
receiver array to receive the transmitted acoustic signals to provide a set of
received time signals (Appeal Br. 7). Appellant argues that unlike the use of
conventional, off-the-shelf equipment in Electrical Power Group v. Alstom
S.A., 830 F.3d 1350 (Fed. Cir. 2016), the present claims recite a specific tool
configuration in a borehole needed to create the radial distance profile
(Appeal Br. 7–8). Appellant contends that the claims recite significantly
more than the abstract idea because the claims show an improvement to a
technology/technical field of downhole drilling to optimize hydrocarbon
recovery from a reservoir based on the determined radial distance profiles of
slowness (Appeal Br. 8). Appellant argues that existing hydrocarbon
recovery technology is improved based on measurements of these formation
properties and therefore, claim 1 does impose meaningful limitations on the
abstract idea in that the mathematical operations are applied to improve an
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existing technology of hydrocarbon recovery based on a tool specifically
positioned in a borehole and a receiver array (Appeal Br. 10).

STATEMENT 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.
However, the Supreme Court 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. Id. 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
determined to be patent eligible include physical and chemical processes,
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such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 192
(1981)); “tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 184 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 176; see also id. at 192 (“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
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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.
The PTO recently published revised guidance on the application of §
101. USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent Subject
Matter Eligibility Guidance (“Memorandum”). Under that guidance, 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
interactions such as a fundamental economic practice, or mental processes);
an
(2) additional elements that integrate the judicial exception into a practical
application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that are not
“well-understood, routine, conventional” in the field (see MPEP §
2106.05(d)); 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.
See Memorandum.

OPINION
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In the present case, we agree with the Examiner that claims 1, 6, and
13 recite an abstract idea that involves mathematical concepts vis-a-vis the
programming/software that is part of the processing system. Specifically,
we find that the step of “performing a frequency semblance on the set of
received time signals to provide a set of semblance values as a function of
slowness and wavelength, and providing a radial distance profile of slowness
based upon the set of semblance values” in claim 1 recites an abstract idea
based upon mathematical concepts. Claim 6 recites “perform a frequency
semblance on a set of acoustic signals r(t;i), i = 1, 2, ... , n, received at a tool
in a borehole, where n is an integer and tis a time index, to provide a set of
semblance values C(ω;s) in (ω,s) coordinate space, where ω is frequency (in
radians) and s is slowness; provide a set of semblance values Ĉ(λ;s) in (λ;s)
coordinate space, where λ is wavelength and where Ĉ(λ; s) = C( ω; s)]ω
=2π/λs; and provide a radial distance profile of slowness based upon the set
of semblance values Ĉ(λ;s) and a function mapping wavelength to radial
depth” recites an abstract idea based upon mathematical concepts. Claim 13
recites “a processing system for performing a frequency semblance on a set
of acoustic signals r(t;i), i = 1, 2, ... , n, received at a tool in a borehole,
where n is an integer and tis a time index, to provide a set of semblance
values C(ω;s) in (ω,s) coordinate space, where ω is frequency (in radians)
and s is slowness; providing a set of semblance values Ĉ(λ;s) in (λ;s)
coordinate space, where λ is wavelength and where Ĉ(λ; s) = C( ω; s)]ω
=2π/λs; and providing a radial distance profile of slowness based upon the
set of semblance values Ĉ(λ;s) and a function mapping wavelength to radial
depth” which recites an abstract idea based upon mathematical concepts.
The Specification describes frequency semblance as a mathematical
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algorithm for generating numerical values (semblance values) and does not
particularly limit the method for performing the frequency semblance. Spec.
¶¶ 14–19.
We now determine whether the additional elements in the claims
integrate the judicial exception into a practical application. We find that
claims 1, 6, and 13 do not integrate the abstract idea into a practical
application as, according to Supreme Court and Federal Circuit case law, it
does not impose a meaningful limit on the judicial exception, i.e., the
mathematical concepts. Although Appellant argues that the present claims
recite a specific tool configuration in a borehole needed to create the radial
distance profile, claims 1 and 13 merely recite a tool with a transmitter and a
receiver array for receiving (Appeal Br. 7–8). Claims 6 and 13 recite that
the processing system performs a frequency semblance on a set of acoustic
signals received at a tool in a borehole. The claims do not recite anything
more than a generic transmitter, receiver, and a processing system. See e.g.,
Claim 13. The steps of performing a frequency semblance on the set of
received time signals to provide semblance values and providing a radial
distance profile of slowness based upon the semblance values are performed
in the “processing system” (claims 1 and 6). The processing system is
described as “programmable processors, special purpose hardware modules,
modules programmed by firmware, or some combination thereof” (Spec. ¶
12). In other words, the processing system is a programmable processor
(e.g., a computer) that is programmed to perform a well-known processing
algorithm to perform frequency semblance (Spec. ¶¶ 12, 14). Although the
claims recite “providing a radial profile” such is considered merely the
output of the well-known mathematical algorithm that determines the
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frequency semblance values, which create the radial frequency profile.
Appellant does not explain how the claims require a particular tool
configuration that achieves an improvement in downhole drilling as argued
(App. Br. 8). Attorney argument cannot take the place of evidence in the
record. In re Schulze, 346 F.2d 600, 602 (CCPA 1965). The claims recite
generic transmitters, receivers and processing systems at a high level of
generality that amount to nothing more than simply applying the
mathematical concept using a generic computer component (i.e., processing
system).
Where, as here, the claim does not integrate the abstract idea into a
practical application in a manner within the confines of the case law, we
proceed to the second portion of the Alice/Mayo framework (Step 2B of the
Guidance) to see if the additional elements “provide an inventive concept,
(i.e., whether the additional elements amount to significantly more than the
exception itself).” Guidance § III.B; see Alice, 573 U.S. at 217–218 (“We
have described step two of this analysis as a search for an “inventive
concept”—i.e., an element or combination of elements that is sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the ineligible concept itself.”) (internal quotations and alterations
omitted).
Appellant argue that the claimed tool arrangement provides
significantly more than the mathematical concept because the claims show
an improvement to a technology/technical field of downhole drilling to
optimize hydrocarbon recovery from a reservoir based on the determined
radial distance profile of slowness (App. Br. 8). Appellant contends that the
claims impose meaningful limitations in that the mathematical operations are
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applied to improve an existing technology of hydrocarbon recovery based on
a tool specifically positioned in a borehole for transmitting acoustic signals
and a receiver array to receive signal to provide a set of received time
signals (App. Br. 9).
The additional elements in the claim include transmitters and
receivers in combination with a processing system. As noted above in our
analysis of whether the claims are tied to a practical application of the
mathematical concept, we find that the transmitters, receivers and processing
system (i.e., programmable computer), analyzed both individually and as an
ordered combination, are recited at a high level of generality and are generic,
well-known components. Indeed, the Specification discloses that the
frequency semblance may be performed by “well-known processing
algorithms” (Spec. ¶ 14). In other words, the processing system is merely a
generic computer implementing well-known software. The combination of
generic transmitters, receivers and computer processing equipment does not
amount to significantly more than the mathematical concept/abstract idea
itself. The receiving of the acoustic signal and processing of the signal using
a frequency semblance amount to nothing more than the data collection and
outputting the result of applying a semblance analysis to the data collection.
In our view, the Examiner has established that the claims of this appeal align
most directly with the facts in Electric Power Group LLC v. Alstom S.A.,
830 F.3d 1350 (Fed. Cir. 2016). Final Act. 2-3. We find that the generic
additional elements taken alone and in an ordered combination with each
other do not add significantly more to the abstract idea (i.e., mathematical
algorithm/concept) that is the basis of the claims.
We affirm the Examiner’s § 101 rejection.
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35 U.S.C. § 102(b) Rejection
The Examiner finds that independent claims 1, 6, and 13 are
anticipated by Blanch (Final Act. 6–11). The Examiner finds, in relevant
part, that Blanch teaches providing a radial distance profile of slowness
based upon a set of semblance values in paragraph 49 (Final Act. 7, 9, 11).
The Examiner finds that the depth in the paragraph 49 sentence, “[a]s with
time domain sequences, a log or other correlation of depth and slowness may
be created,” includes radial distance (Final Act. 7, 9, 11). The Examiner
explains that a person of ordinary skill in the art would have understood that
depth in Blanch’s paragraph 49 disclosure includes radial depth because
drilling is based on radial or rotational drilling tools (Final Act. 7, 9, 11).
The Examiner finds that Blanch’s transmitters and receivers send and
receive signals, respectively, from the formation surrounding the radial
borehole at a particular depth (i.e., within the same depth around the radius
of the tool of Blanch’s Figure 3) (Final Act. 7, 9, 11).
Appellant argues that the main point of disagreement is whether
Blanch’s log that correlates depth and slowness for the frequency
semblances in Blanch discloses the radial distance profile based upon the set
of semblance values (Appeal Br. 12). Appellant contends that the signals in
Blanch’s Figure 3 which are shown to be received by the acoustic receivers
do not provide any profile of slowness nor do they disclose a profile based
on any semblance values (Appeal Br. 13). Regarding Blanch’s paragraph 49
disclosure, Appellant contends that depth means the depth down the
borehole as measured from the top of the borehole, not the radial distance
profile (App. Br. 13).
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Appellant’s arguments do not persuade us that the Examiner
reversibly erred. Blanch discloses that a series of waveforms arrive at the
receivers and those waveforms are displayed in a typical time domain
semblance (¶¶ 42-43). Blanch discloses that the time domain plots are
difficult to interpret and are prone to error (¶ 43). Blanch teaches that the
frequency semblance plotof Figure 2E shows the peaks in the waveforms (¶
44). Blanch teaches that, “Figure 2G is a frequency semblance plot
corresponding to about the same depth as Figure 2B, but displays a broader
range of frequencies of Figure 2G.” (emphasis added). Blanch teaches in
paragraph 49 that a log of depth and slowness maybe be created to help infer
the actual lithology of the formation. Blanch teaches that the frequency
semblance plots of slowness are performed at different depths within the
borehole in order to correlate the slowness in the formation at the different
depths. See e.g., Blanch claim 19.
We understand that Blanch teaches that the frequency semblance of
the waveforms received at the receiver from the rock formation at various
depths of the borehole provides a map of the lithology of the rock formation
at various borehole depths. The transmitter and receivers are placed along
the circumference of the borehole (i.e., the radial direction of the borehole)
as the Examiner finds in order to acquire data about the rock formation along
the side of the borehole (Ans. 9–10). In other words, Blanch uses the
transmitters and receivers to determine via a frequency semblance of the
waveforms, the slowness in the rock formation adjacent the borehole.
Blanch teaches that this data helps to infer the actual lithology of the
formation (¶ 49).
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In light of these findings, Appellant’s argument that the depth in
Blanch refers to the depth of the borehole does not address the Examiner’s
full findings regarding Blanch. Blanch does disclose that depth refers to the
location of the transmitters and receivers in the borehole, but Blanch further
discloses that the slowness from a frequency semblance of the waveforms
acquired form the transmitters and receivers around the circumference of the
borehole provides information about the lithology of the formation (¶ 49,
claim 19). Blanch acquires this data at different depths of the borehole to
study the lithology of the rock formation along the borehole (¶ 49). In other
words, the frequency semblance of the slowness provides information about
the rock formation that extends in the radial distance direction from the
center of the borehole. Blanch provides a radial distance profile of slowness
in the rock formation that surrounds the borehole based upon the frequency
semblance values.
We find that the preponderance of the evidence favors the Examiner’s
finding of anticipation. On this record, we affirm the Examiner’s § 102(b)
rejection over Blanch.

35 U.S.C. § 103 Rejection
Appellant relies on arguments made regarding the §102 rejection over
Blanch in arguing the § 103 rejection over Blanch and Dubinsky. Because
we find that Appellant’s argument regarding Blanch are not persuasive, we
affirm the Examiner’s § 103 rejection for the same reasons.

CONCLUSION
In summary:
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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 4, 6, 8–
16, and 19–21
§ 101 Eligibility 1, 3, 4, 6, 8–16,
and 19–21

1, 3, 6, 8–10,
13-16, and 19–
21
§ 102 Anticipation 1, 3, 6, 8–10,
13–16, and 19–
21

4, 5, 11, 12,
17, and 18
§ 103 Obviousness 4, 5, 11, 12, 17,
and 18

Overall
Outcome
1, 3–6, 8–21

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED