Coates, Richard T. et al.

Patent Trials and Appeals Board

Feb 3, 2020

15035884 - (D) (P.T.A.B. Feb. 3, 2020)

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.
15/035,884 05/11/2016 Richard T. Coates IS13.4022-US-PCT 5851
28116 7590 02/03/2020
WesternGeco L.L.C.
10001 Richmond Avenue
IP Administration Center of Excellence
Houston, TX 77042
EXAMINER
LOBO, IAN J
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
02/03/2020 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):
SMarckesoni@slb.com
USDocketing@slb.com
jalverson@slb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICHARD T. COATES, DARRELL COLES, WEI DAI,
and KUN JIAO
____________

Appeal 2019-003236
Application 15/035,884
Technology Center 3600
____________

Before EDWARD A. BROWN, ANNETTE R. REIMERS, and
MICHAEL L. WOODS, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 1–10 and 12–20.2 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
Schlumberger Technology Corporation. Appeal Br. (filed Nov. 5, 2018) 3.
2 Claim 11 is cancelled. Appeal Br. 18. Claim 21 is objected to as
depending from a rejected base claim, but indicated to contain allowable
subject matter. Final Act. (dated June 12, 2018) 7.
Appeal 2019-003236
Application 15/035,884

2
CLAIMED SUBJECT MATTER
Claims 1, 17, and 20 are independent claims. Claim 1 illustrates the
claimed subject matter on appeal and is reproduced below with reference
letters added in brackets.
1. A method for seismic data processing, comprising:
[A] receiving seismic data for a region of interest,
wherein the seismic data were acquired in a seismic survey;
[B] determining sparse seismic data by selecting shot
points in the acquired seismic data using statistical sampling,
wherein determining the sparse seismic data comprises
determining at least one exclusion criterion that includes one or
more rules for selecting the shot points in the acquired seismic
data based on a location of an individual shot point relative to
other shot points, wherein the shot points are selected based on
the at least one exclusion criterion, and wherein other shot
points not selected based on the at least one exclusion criterion;
[C] determining simulated seismic data based at least in
part on an earth model for the region of interest, a reflection
model for the region of interest, and the selected shot points;
[D] determining an objective function that represents a
mismatch between the simulated seismic data and the sparse
seismic data; and
[E] updating the reflection model based at least in part on
the objective function.

Appeal Br. 17 (Claims App.).

REJECTIONS
Claims 1–10 and 12–20 are rejected under 35 U.S.C. § 101 as directed
to patent-ineligible subject matter. Final Act. 3.
Claims 1–10 and 12–20 are provisionally rejected on the ground of
non-statutory double patenting as unpatentable over claims 1–20 of US
Application No. 14/292,487. Final Act. 7.
Appeal 2019-003236
Application 15/035,884

3
ANALYSIS
Patent eligibility of claims 1–10 and 12–20
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.
Concepts that have been 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 v.
Kappos, 561 U.S. 593 (2010)); mathematical formulas (Parker v. Flook, 437
U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409
U.S. 63, 69 (1972)).
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
Appeal 2019-003236
Application 15/035,884

4
ensure ‘that the [claim] is more than a drafting effort designed to
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.
On January 7, 2019, the PTO issued revised guidance on the
application of § 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (hereinafter “2019 Guidance”). The 2019
Guidance includes steps 2A and 2B. Under Step 2A, Prong One, of the
guidance, we first look to whether the claim recites any judicial exception,
including certain groupings of abstract ideas (i.e., mathematical concepts,
certain methods of organizing human activities such as a fundamental
economic practice, or mental processes). See id. at 54.
If a claim recites a judicial exception, we proceed to Step 2A, Prong
Two, and determine whether the claim recites additional elements that
integrate the judicial exception into a practical application. See id.; see also
MPEP § 2106.05(a)–(c), (e)–(h).
Only if a claim both recites a judicial exception and fails to integrate
the judicial exception into a practical application, do we proceed to Step 2B
of the guidance. At Step 2B, we determine whether the claim adds a specific
limitation beyond the judicial exception that is not “well-understood,
routine, conventional” in the field (see MPEP § 2106.05(d)); or simply
appends well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality, to the judicial
exception. See 84 Fed. Reg. 56.

Appeal 2019-003236
Application 15/035,884

5
Claim Grouping
Appellant argues the patent eligibility of claims 1–10 and 12–20 as a
group. Appeal Br. 9–15. We select claim 1 as representative. 37 C.F.R.
§ 41.37(c)(1)(iv). Claims 2–10 and 12–20 stand or fall with claim 1.
Step One – Statutory Category
Claim 1 is directed to a method, one of the statutory classes of subject
matter eligible for patenting under 35 U.S.C. § 101 (i.e., a process).
Step 2A, Prong One – Recitation of Judicial Exception
We next determine whether claim 1 recites any judicial exception,
including certain groupings of abstract ideas; namely, mathematical
concepts, certain methods of organizing human activities such as a
fundamental economic practice, or mental processes.
The Examiner determines that claim 1 recites an abstract idea,
namely, “manipulating information using mathematical relationships.” Final
Act. 4.
We agree with the Examiner that claim 1 recites an abstract idea. Step
B of claim 1 recites “determining sparse seismic data by selecting shot
points in the acquired seismic data using statistical sampling,” where
“determining the sparse seismic data comprises determining at least one
exclusion criterion that includes one or more rules for selecting the shot
points in the acquired seismic data based on a location of an individual shot
point relative to other shot points,” and “the shot points are selected based
on the at least one exclusion criterion, and wherein other shot points not
selected based on the at least one exclusion criterion.” Appeal Br. 17
(Claims App.).
Appeal 2019-003236
Application 15/035,884

6
Step B recites “one or more rules” at a high level of generality. As
support for step B, Appellant references paragraphs 84–97 of the
Specification in the Summary of Claimed Subject Matter. See Appeal Br. 6.
As described in paragraphs 94–96, Figures 7A–7C illustrate examples of
statistically sampling shot points from a survey shot distribution 700. Figure
7A shows a shot point 710A randomly selected from survey shot distribution
700 and having a corresponding exclusion radius 705. Spec. ¶ 94, Fig. 7A.
Shot point 710B lying outside of exclusion radius 705 may be selected,
whereas shot point 715 lying inside of exclusion radius 705 may be
excluded, from the sparse seismic data. Id. The determination of an
exclusion radius is further described at paragraphs 84–86 of the
Specification.
As described in paragraph 96 of the Specification, Figure 7C shows a
survey shot distribution 700 of acquired seismic data divided into a grid 730
of seismic cells to select shot points. For such seismic cells, the exclusion
criteria may limit statistical sampling of the acquired seismic data to a
predetermined number of shot points within a seismic cell. Id. ¶ 87.
Paragraphs 84–97 of the Specification do not appear to describe that
selecting shot points in acquired seismic data using statistical sampling
based on an exclusion criterion that uses an exclusion radius or a grid of
seismic cells to select shot points requires use of a computing system.
Under its broadest reasonable interpretation, step B involves acts that can be
performed through observation, evaluation, or judgment in the human mind
or on paper. Such acts fall within the abstract idea exception grouping of
mental processes. See 2019 Guidance at 52. Thus, we determine that step B
recites a mental process, which is a judicial exception.
Appeal 2019-003236
Application 15/035,884

7
Step D of claim 1 recites “determining an objective function that
represents a mismatch between the simulated seismic data and the sparse
seismic data.” Appeal Br. 17 (Claims App.). The Specification describes
that the objective function may refer to the relationship between the acquired
seismic data and the simulated seismic data as described in Equation 1. See
Spec. ¶¶ 98–99. The objective function may be a least-squares objective
function, as expressed in Equation 1, or may use other norms besides the
least-squares norm. Id. ¶ 99. Paragraph 100 of the Specification describes
that the objective function may be a regularized objective function as
expressed by Equation 2. We determine that, under its broadest reasonable
interpretation, step D involves a mathematical relationship, mathematical
formula or equation, or mathematical calculation, which according to the
2019 Guidance, fall within the abstract idea exception grouping of
mathematical concepts. See 2019 Guidance at 52. Thus, step D recites a
mathematical concept, which is a judicial exception.
Step E of claim 1 recites “updating the reflection model based at least
in part on the objective function.” Appeal Br. 17 (Claims App.). The
Specification describes that the reflection model may be updated using the
gradient (g(r)) of the objective function and that rules and optimization
techniques can be used. See Spec. ¶ 104; see also ¶ 101 (describing how the
gradient of the objective function may be expressed), ¶ 102 (describing that
determining the gradient involves computations). Under its broadest
reasonable interpretation, step E also involves a mathematical relationship,
mathematical formula or equation, or mathematical calculation, which
according to the 2019 Guidance, fall within the abstract idea exception
Appeal 2019-003236
Application 15/035,884

8
grouping of mathematical concepts. See 2019 Guidance at 52. Thus, step E
recites a mathematical concept, which is a judicial exception.
Referring to the 2019 Guidance, Appellant contends that the claims do
not fall into the categories of mathematical concepts, organizing human
activity, and mental processes. Reply Br. 2. According to Appellant, none
of the claim steps recites “mathematical relationships, formulas, equations,
or calculations, even in general.” Id. Appellant specifically addresses only
step E, stating this step “is totally unrelated to mathematical concepts.” Id.
Rather, Appellant contends, step E “is directed to updating a model (e.g., an
image) that is a physical representation of the subterranean formation, which
may be used to ‘determine the presence of hydrocarbons in the region of
interest. For instance, the updated reflection model may be used to facilitate
hydrocarbon exploration or production.’” Id. (citing Spec. ¶ 108).
Appellant’s contentions are unpersuasive. We determine that steps D
and E both involve using mathematical relationships, mathematical formulas
or equations, or mathematical calculations, and thus, recite mathematical
concepts according to the 2019 Guidance. Furthermore, Step E does not
recite updating a model that is a physical representation of a subterranean
formation. Nor does claim 1 require the updated reflection model to be used
for any purpose, much less for determining the presence of hydrocarbons in
a region of interest, such as to facilitate hydrocarbon exploration or
production. Appellant’s contentions regarding the use of the updated
reflection model are incommensurate with the actual language of step E.
As for the mental processes grouping of the abstract idea exception in
the 2019 Guidance, Appellant contends that one or more steps in the claims
cannot be performed in the human mind, but must be performed on a
Appeal 2019-003236
Application 15/035,884

9
computing system. Reply Br. 2. According to Appellant, the
“[S]pecification describes a computing system 800 configured to perform
one or more steps of the method. These steps performed by the computing
system may include, for example, updating the reflection model, which
cannot be performed in the human mind.” Id. (emphasis added).
These contentions are also unpersuasive. First, Appellant does not
contend that every step of claim 1 cannot be performed in the human mind,
but rather, must be performed on a computing system. To the extent it is
Appellant’s position that unless every step of claim 1 can be performed in
the human mind, then the claim cannot be considered to recite any limitation
that falls within the abstract idea exception grouping of mental processes,
Appellant provides no authority supporting such position. To the contrary,
courts have found claims that even require a generic computer, or that
incidentally recite a generic computer, may still recite a mental process even
though the claim limitations are not performed entirely in the human mind.
See 2019 Guidance at 52 n.14.
Second, like the claims at issue in Synopsis, Inc. v. Mentor Graphics,
Corp., 839 F.3d 1138, 1149 (Fed. Cir. 2016), on its face, claim 1 does not
call for any computer implementation of the recited steps. To the extent
Appellant may be arguing that one or more steps of the method must be
construed as requiring the use of a computing system, we decline to do so.
Appellant does not direct us to any disclosure, or provide any other
evidence, requiring such claim construction. And like the claims in
Synopsis, “[b]ecause . . . [claim 1] makes no mention of employing a
computer or any other physical device . . . [it appears] so broad as to read on
Appeal 2019-003236
Application 15/035,884

10
an individual performing the claimed steps mentally or with pencil and
paper.” Id.
Third, Appellant contends that updating the reflection model (i.e., step
E), in particular, cannot be performed in the human mind, and seems to
contend that this updating must be performed on a computing system. Reply
Br. 2. However, we decline to construe step E, in particular, as requiring use
of a computing system, as again, Appellant does not direct us to any
disclosure, or provide any other evidence, that requires such construction. In
that regard, Appellant’s Specification describes, “[i]mplementations of
various technologies described herein may be operational with numerous
general purpose or special purpose computing system environments or
configurations.” Spec. ¶ 160 (emphasis added). As for computing system
800 mentioned by Appellant (Reply Br. 2), the Specification describes,
“Figure 8 illustrates a schematic diagram of a computing system 800 in
which the various technologies described herein may be incorporated and
practiced. Although the computing system 800 may be a conventional
desktop or a server computer, as described above, other computer system
configurations may be used.” Id. ¶ 163 (emphasis added). Appellant does
not direct us to any disclosure that step E must be performed on computing
system 800, or some other computing system.
And, even assuming that step E must be construed as requiring
performance on a computer system, even express recitation of computer
components (which claim 1 lacks), does not, by itself, establish that the
claim does not recite mental steps. See Versata Dev. Grp. v. SAP Am., Inc.,
793 F.3d 1306, 1335 (Fed. Cir. 2015) (“Courts have examined claims that
required the use of a computer and still found that the underlying, patent-
Appeal 2019-003236
Application 15/035,884

11
ineligible invention could be performed via pen and paper or in a person’s
mind.”).
Further, the Specification describes that computing system 800 may
be conventional, and “performance of a claim limitation using generic
computer components does not necessarily preclude the claim limitation
from being in the mathematical concepts grouping, Benson, 409 U.S. at 67,
or the certain methods of organizing human activity grouping, Alice, 573
U.S. at 219–20.” See 2019 Guidance at 52 n.14 (emphasis omitted). “If a
claim, under its broadest reasonable interpretation, covers performance in
the mind but for the recitation of generic computer components, then it is
still in the mental processes category unless the claim cannot practically be
performed in the mind.” Id. Accordingly, Appellant’s contention is not
persuasive.
We therefore determine that claim 1 recites the abstract ideas of
mathematical concepts and mental processes, which are judicial exceptions
to patent-eligible subject matter. We proceed to Prong Two to determine
whether claim 1 is “directed to” the judicial exception.
Step 2A, Prong Two – Practical Application
We next determine whether the recited judicial exception is integrated
into a practical application of that exception by: (a) identifying whether
there are any additional elements recited in the claim beyond the judicial
exception(s); and (b) evaluating those additional elements individually and
in combination to determine whether they integrate the exception into a
practical application. This evaluation requires an additional element or a
combination of additional elements in the claim to apply, rely on, or use the
judicial exception in a manner that imposes a meaningful limit on the
Appeal 2019-003236
Application 15/035,884

12
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the exception. See 2019 Guidance at 54.
The 2019 Guidance indicates that, in the context of Prong Two, an
exemplary consideration indicative of an additional element (or combination
of elements) that may integrate the exception into a practical application is
an additional element that reflects an improvement in the functioning of a
computer, or an improvement to other technology or technical field. See id.
at 55.
Here, it is Appellant’s position that “[b]y specifying how the
reflection model is updated, the limitations in the claims improve the
technical field of seismic surveys and subterranean modeling applications.”
Appeal Br. 11. According to Appellant, “updating the reflection model,” as
recited in step E, “represents a practical application of the processing
provided by the other steps in the claims.” Reply Br. 3. Appellant submits
that step E “‘reflects . . . an improvement to other technology or technical
field,’ namely, the field of seismic processing.” Id. Appellant contends that
the Specification states, “‘[T]here is a need for methods and computing
systems that can employ more effective and accurate methods for
identifying, isolating, and/or processing various aspects of seismic signals or
other data that is collected from a subsurface region or other
multidimensional space.” Id. (quoting Spec. ¶ 4). Appellant further
contends that “Appellant’s processing steps provide these more effective and
accurate methods, which improve the seismic processing field. For example,
Appellant’s Specification describes the benefits, which include fewer
iterations and reduced computational costs to reach the updated reflection
model.” Id. (citing Spec. ¶ 89). Appellant argues,
Appeal 2019-003236
Application 15/035,884

13
[t]hese benefits provided by the processing steps
culminate in the practical application of ‘updating the
reflection model.’ This final step is a practical application
because the updated reflection model may be used to locate
hydrocarbons (e.g., oil) in the subterranean formation, which
may help to produce/extract the hydrocarbons.
Id. (emphasis added). In support, Appellant quotes description in paragraph
108 of the Specification. Id. at 3–4.
Appellant’s contentions are unpersuasive. Even if the claimed at least
one exclusion criterion may be used to limit which shot points in acquired
seismic data may be sampled, and this may avoid certain computing
inefficiencies and computational costs, as described in paragraph 89 of the
Specification, claim 1 does not call for any computer implementation of the
recited steps. To the extent Appellant is contending that such computing
inefficiencies and computational costs must, nonetheless, be associated with
a computing system, we disagree. All steps of claim 1, including step B
which calls for “determining at least one exclusion criterion,” appear broad
enough to read on an individual performing the steps mentally or with pencil
and paper.
Second, even if “the updated reflection model may be used to locate
hydrocarbons (e.g., oil) in the subterranean formation,” claim 1 does not
expressly require this use of the updated reflection model.3 Reply Br. 3. In

3 It should be noted that claim 21, which depends from claim 1, recites
“further comprising determining a presence of a hydrocarbon in the region
of interest based at least in part on the updated reflection model.” Appeal
Br. 21 (Claims App.). According to the doctrine of claim differentiation
“‘the presence of a dependent claim that adds a particular limitation raises a
presumption that the limitation in question is not found in the independent
claim.’” Bancorp Servs. L.L.C. v. Sun Life Assurance Co. of Can. (U.S.),
687 F.3d 1266, 1275 (Fed. Cir. 2012).
Appeal 2019-003236
Application 15/035,884

14
fact, claim 1 does not require the updated reflection model to be used for any
purpose. To the extent it is Appellant’s position that claim 1 integrates any
judicial exception into a practical application because step E may be used to
locate hydrocarbons in a subterranean formation, despite this use being
unclaimed, we disagree.
Third, to the extent it is Appellant’s position that using the exclusion
criteria provides an “improvement[] over conventional systems and
methods” and avoids certain computing inefficiencies and computational
costs (Appeal Br. 11–12), again, claim 1 does not call for any computer
implementation of the recited steps.
In addition to steps B, D, and E discussed above in Step 2A, Prong
One, step A of claim 1 recites “receiving seismic data for a region of
interest, wherein the seismic data were acquired in a seismic survey.”
Appeal Br. 17 (Claims App.). This step merely recites receiving seismic
data acquired in a seismic survey for analysis of the seismic data and,
therefore, is insignificant extra-solution activity. See 2019 Guidance 55
n.31. Step C of claim 1 recites “determining simulated seismic data based at
least in part on an earth model for the region of interest, a reflection model
for the region of interest, and the selected shot points.” Appeal Br. 17
(Claims App.). Appellant does not contend that either of these additional
elements integrates any judicial exception discussed above in Prong One
into a practical application.
Appellant also contends that claim 1 does not tie up a mathematical
relationship or algorithm. Appeal Br. 9. According to Appellant, even if the
claim involves a mathematical relationship or algorithm, the claim is
“directed to a specific algorithm that analyzes specific seismic data in a
Appeal 2019-003236
Application 15/035,884

15
specific manner.” Id. at 10. Appellant’s contention appears to be premised
on a lack of preemption. But even assuming Appellant’s contention is
correct, as the Examiner recognizes, “‘[w]hile preemption may signal patent
ineligible subject matter, [but] the absence of complete preemption does not
demonstrate patent eligibility.’” Ans. 3 (citing Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)). Accordingly,
Appellant’s apparent non-preemption argument is unpersuasive.
Appellant also contends that claim 1 is not directed to a known
method, as evidenced by the absence of any outstanding rejection under 35
U.S.C. § 102 or § 103. Appeal Br. 14. According to Appellant, because the
claimed method was not previously known, the claims are patent eligible.
Id. We disagree. The patent eligibility analysis is not an evaluation of
novelty or non-obviousness. “A claim for a new abstract idea is still an
abstract idea.” Synopsis, 839 F.3d at 1151. Even assuming that the claimed
method may be novel, “[t]he ‘novelty’ of . . . the . . . [claim] itself, is of no
relevance in determining whether the subject matter of a claim falls within
the § 101 categories of possibly patentable subject matter.” See Diamond v.
Diehr, 450 U.S. 175, 188–189 (1981). A novel and non-obvious claim
directed to a purely abstract idea is, nonetheless, patent-ineligible. See
Mayo, 566 U.S. at 90–91.
In short, the additional elements recited in claim 1: (1) do not
improve the functioning of a computer or other technology, as Appellant
contends; (2) are not applied with any particular machine; (3) do not affect a
transformation of a particular article to a different state; and (4) are not
applied in any meaningful way beyond generally linking the use of the
judicial exception to a particular technological environment. See MPEP
Appeal 2019-003236
Application 15/035,884

16
2106.05(a)–(c), (e)–(f). Accordingly, Appellant’s contentions do not
persuade us that claim 1 recites any additional claim element(s) that
integrate(s) the judicial exception into a practical application of the
exception. That is, claim 1 is “directed to” the judicial exception. See 2019
Guidance at 54. Accordingly, we proceed to determine whether claim 1
recites an “inventive concept.”
Step 2B – Inventive Concept
For Step 2B of the analysis, we determine whether the claim adds a
specific limitation beyond the judicial exceptions that is not “well-
understood, routine, conventional” in the field. See 2019 Guidance.
The Examiner concludes that claim 1 does not include any additional
elements that are sufficient to amount to significantly more than the abstract
idea itself. Final Act. 4–5.
Appellant contends that the claim improves the technical field of
seismic surveys and subterranean modeling applications by specifying how
the reflection model is updated, and captures the improvements described in
the Specification, and thus, is patent eligible under Step 2B. Appeal Br. 11–
12. As discussed above, however, Appellant’s contentions do not persuade
us that the additional elements of claim 1 provide an improvement in the
functioning of a computer (at least because no computer implementation is
even recited), or an improvement to other technology or technical field.
Appellant contends that Finjan4 supports its position that the claim
provides an inventive concept. Id. at 12–13. According to Appellant, “just
like the claims in Finjan, Appellant’s claims are patent-eligible, without any

4 Finjan Inc. v. Blue Coat Sys. Inc., 879 F. 3d 1299 (Fed. Cir. 2018).
Appeal 2019-003236
Application 15/035,884

17
need to recite a controlled physical component apart from a computer.” Id.
at 13 (emphasis added). To the extent Appellant may again be contending
that claim 1 must be performed on a computing system, again, claim 1 does
not call for any computer implementation of the recited steps. Nor does
claim 1 require the updated reflection model to be used for any purpose.
Furthermore, as we determine that steps B, D, and E recite abstract
ideas, Appellant is effectively relying on the application of those abstract
ideas in the claimed method as the alleged inventive concept. Id. at 11–13.
Appellant does not show persuasively that the abstract ideas recited in claim
1 are applied using techniques that are not conventional and well-
understood. A claim’s “use of the ineligible concept to which it is directed
cannot supply the inventive concept that renders the invention ‘significantly
more’ than that ineligible concept.” BSG Tech LLC v. BuySeasons, Inc., 899
F.3d 1281, 1290 (Fed. Cir. 2018); Synopsys, 839 F.3d at 1151 (“[A] claim
for a new abstract idea is still an abstract idea.”).
Thus, we sustain the rejection of claim 1 under 35 U.S.C. § 101.
Claims 2–10 and 12–20 fall with claim 1.

Appeal 2019-003236
Application 15/035,884

18
Non-statutory double patenting of claims 1–10 and 12–20
In the Appeal Brief, Appellant does not address the non-statutory
double patenting rejection of claims 1–10 and 12–20. Accordingly, we
sustain the rejection of these claims on the ground of non-statutory double
patenting as unpatentable over claims 1–20 of US Application No.
14/292,487.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–10, 12–20 101 Patent ineligible
subject matter
1–10, 12–
20

1–10, 12–20 Non-statutory
double
patenting
Claims 1–20 of US
Application No.
14/292,487
1–10, 12–
20

Overall
Outcome
1–10, 12–
20

FINALITY AND 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)(1)(iv).

AFFIRMED