Ex Parte Burkholder et al

Board of Patent Appeals and Interferences

Aug 30, 2012

11118068 (B.P.A.I. Aug. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SCOTT K. BURKHOLDER, DAVID JON FARRELL,
PAUL D. FAVRET, TODD J. FOCKLER,
AARON STAFFORD OAKLEY, ROBERT STEWART,
ZACHARY ALEXANDER JAMES ZUPPAS
and JAMES MUIR DRUMMOND
____________

Appeal 2010-000709
Application 11/118,068
Technology Center 3600
____________

Before LINDA E. HORNER, JOHN C. KERINS and
WILLIAM V. SAINDON, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL

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STATEMENT OF THE CASE
Scott K. Burkholder et al. (Appellants) appeal from the Examiner’s
decision finally rejecting claims 1-22. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

THE CLAIMED SUBJECT MATTER
Appellants’ invention is directed to a method for acquiring seismic
data, and a system for performing the method. Independent claim 1,
reproduced below with emphasis added, is illustrative:
1. A method for acquiring seismic data, the
method comprising:

transmitting an ambient electromagnetic signal
having a known time dependence for propagation
within a survey area;

receiving the ambient electromagnetic signal at a
plurality of distinct geographic locations with
independently operating data acquisition units
positioned at the plurality of distinct locations;

collecting data representing acoustic signals
received from the Earth at the plurality of distinct
geographic locations with the data acquisition
units; and

synchronizing the collected acoustic signals for the
plurality of distinct geographic locations by
correlating the known time dependence of the
propagated electromagnetic signal with time
dependencies of the collected acoustic signals.

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THE REJECTIONS
The Examiner has rejected:
(i) claims 1-5, 8, 9 and 14-20 under 35 U.S.C. § 102(b) as being
anticipated by Morgan (US 6,188,962 B1, issued Feb. 13, 2001);
(ii) claims 6 and 7 under 35 U.S.C. § 103(a) as being unpatentable
over Morgan and Fenton (US 2006/0271331 A1, published Nov. 30, 2006)
or Kostelnicek (US 4,879,696, issued Nov. 7, 1989);
(iii) claims 10-13, 21 and 22 under 35 U.S.C. § 103(a) as being
unpatentable over Morgan and Yule (US 6,590,525 B2, issued Jul. 8, 2003);
and
(iv) claims 1, 5, 6, 7 and 15 on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 1-18 of
Burkholder (US 6,934,219 B2, issued Aug. 13, 2005) and McNatt (US
4,725,992, issued Feb. 16, 1988) or Morgan.

ANALYSIS
Rejections under 35 U.S.C. § 103(a) & Obviousness-Type Double Patenting
As pointed out by the Examiner, rejections (ii)-(iv) above have not
been withdrawn by the Examiner. Ans. 3. Appellants maintain that these
rejections are not the subject of the appeal, but note that they do not concede
the rejections. Appeal Br. 2. No arguments are, however, presented by
Appellants directed to any of rejections (ii)-(iv). Accordingly, Appellants
have waived any arguments that could have been made with respect to these
rejections, and the rejections are summarily sustained.1 Ex Parte Frye, 94

1 While arguments that could have been made directed to the merits of the
obviousness-type double patenting rejection have been waived, we note that
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USPQ2d 1072, 1075 (BPAI 2010) (precedential) (citing Hyatt v. Dudas, 551
F.3d 1307, 1313-14 (Fed. Cir. 2008), for the proposition that the Board may
treat arguments appellant failed to make as waived).

Claims 1-5, 8, 9 and 14-20--Anticipation by Morgan
The sole issue contested by Appellants in connection with this
rejection is whether Morgan discloses a method and system employing a
plurality of “independently operating data acquisition units,” a limitation set
forth in independent claims 1 and 15. Appeal Br. 4-5; Reply Br. 1-2.
Appellants maintain that, while the data acquisition subsystems in
Morgan are disclosed as operating independently of an energy source
controller system and a seismic navigation system, Morgan provides an
operator console for configuration, control and monitoring of, inter alia, the
seismic data acquisition subsystem. Appeal Br. 4-5; Reply Br. 1.
Appellants argue that, due to the presence of an operator console, and the
mention in Morgan that the operator console is provided for “configuration,
control, and monitoring of the . . . seismic data acquisition subsystem”, the
data acquisition subsystems are not independently operating, as claimed.
Appeal Br. 4, quoting, inter alia, Morgan, col. 9, ll. 50-52. Appellants
further argue that this position is supported by the Morgan disclosure that
each data acquisition subsystem includes “a connection to a shipboard
ETHERNET 12 for control and subsystem status monitoring.” Appeal Br. 5,
quoting Morgan, col. 6, ll. 54-56. Finally, Appellants argue, based upon a
purported dictionary definition that is not of record, that “[o]ne of the plain

claims 1-18 of the Burkholder patent were cancelled in Inter Partes
Reexamination Certificate US 6,934,219 C1, issued Apr. 5, 2011.
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meanings of the term ‘independently operating’ denotes operating in a
manner that is not influenced or controlled by other devices.” Reply Br. 2.
In determining the broadest reasonable interpretation of the claim
term “independently operating,” we look to how that term would be
understood by a person of ordinary skill in the art, viewed in light of
Appellants’ Specification. In re Bond, 910 F.2d 831, 833 (Fed. Cir.
1990)(during examination, claims are to be given their broadest reasonable
interpretation consistent with the specification, claim language should be
read in light of the specification as it would be interpreted by one of ordinary
skill in the art.”). Contrary to the proposed plain meaning advocated by
Appellants, the Specification evidences that the independently operating data
acquisition units disclosed by Appellants are not entirely free of influence or
control by other devices. Several examples of this are presented below.
After discussing that an externally generated “ambient
electromagnetic signal” is received by a plurality of “independently
operating data acquisition units”, Appellants describe that, “[t]he ambient
electromagnetic signal may comprise a command to change a state of the
data acquisition units from a dormant state to an active state . . . ,” and “. . .
change a state of the data acquisition units from an active state to a dormant
state.” Spec., p. 3, paras. [0008], [0009]. Appellants also describe that “[i]n
typical field operation, an external wakeup clock wakes the [data
acquisition] unit periodically so that it may check the radio at block 354 for
a DTMF code.” Spec, p. 14, para. [0053]. Appellants also describe that
“[w]hen the data acquisition unit 100 is positioned, the installer may enter
instructions on the handheld computational device to instruct the data
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acquisition unit 100 as to mode of operation, . . ..” Spec., p. 14-15, para.
[0054].
In describing the nature of the independent operation of the data
acquisition units, Appellants refer to “data collected independently by a
plurality of the data acquisition units.” Spec. p. 11, para. [0047]. Similarly,
Appellants disclose that “[w]ith the data acquisition units 100 distributed
over the survey area, they each collect acoustic and ambient-signal data in
accordance with their instructions . . . .” Spec., p. 15, para. [0055].
Even where Appellants discuss that the data acquisition units do not
require direct synchronization with other receiver units or with a source start
time, or require that a master unit initiate a recording sequence, it is noted
that “information distributed to the units may be downloaded using a
wireless network protocol, . . . , by using a physical connection, or by using
an infrared connection.” Spec., p. 6-7, para [0035].
A person of ordinary skill in the art would thus not regard the term
“independently operating” as operating in a manner that is not influenced or
controlled by other devices in any manner whatsoever. The person of
ordinary skill would instead understand that when, as claimed, a method for
acquiring seismic data is performed by Appellants’ system, the independent
operation of each unit involves the recited steps of receiving the ambient
electromagnetic signal and collecting data representing acoustic signals, and,
possibly, synchronizing the collected acoustic signals.
Turning to Morgan, not unlike Appellants’ system, “[o]perator entered
parameters are used to configure the subsystems and to enable or disable
selected subsystems.” Morgan, col. 9, ll. 5-7. This aids in understanding
what is meant in Morgan by the blanket statements to the effect that the
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system may be provided with an operator console for configuration, control
and monitoring of the data acquisition subsystems. Morgan, however,
unequivocally states that, “[n]o real-time operations are dependent upon the
Operator Control Console once it has enabled the [data acquisition]
subsystems . . . .” Morgan, col. 9, ll. 7-9. As such, the plurality of data
acquisition subsystems, when performing the acquisition of seismic data, are
“independently operating” in the same sense that Appellants’ data
acquisition units are, and thus Morgan can be fairly and reasonably said to
disclose this claim limitation in dispute.
Appellants have not persuaded us that the Examiner’s position is in
error. We sustain the rejection of independent claims 1 and 15, and of
claims 2-5, 8, 9, 14 and 16-20 depending therefrom.

CONCLUSION
Appellants have not demonstrated that the Examiner’s rejection of
claims 1-5, 8, 9 and 14-20 as anticipated by Morgan is in error.
The remaining rejections are summarily sustained.
DECISION
The rejections of claims 1-22 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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