Jennifer A. MarketDownload PDFPatent Trials and Appeals BoardDec 10, 201912595294 - (D) (P.T.A.B. Dec. 10, 2019) 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. 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). Appeal 2018-006779 Application 12/595,294 2 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; Appeal 2018-006779 Application 12/595,294 3 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 Appeal 2018-006779 Application 12/595,294 4 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 Appeal 2018-006779 Application 12/595,294 5 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 Appeal 2018-006779 Application 12/595,294 6 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, Appeal 2018-006779 Application 12/595,294 7 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 Appeal 2018-006779 Application 12/595,294 8 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 Appeal 2018-006779 Application 12/595,294 9 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 Appeal 2018-006779 Application 12/595,294 10 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 Appeal 2018-006779 Application 12/595,294 11 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 Appeal 2018-006779 Application 12/595,294 12 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. Appeal 2018-006779 Application 12/595,294 13 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). Appeal 2018-006779 Application 12/595,294 14 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). Appeal 2018-006779 Application 12/595,294 15 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: Appeal 2018-006779 Application 12/595,294 16 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). 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