Ex Parte Cotton et al

Patent Trial and Appeal Board

Mar 13, 2018

13766213 (P.T.A.B. Mar. 13, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/766,213 02/13/2013 Julien COTTON 0336-146-2/100329 5282
11171 7590 03/15/2018
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
EXAMINER
MURPHY, DANIEL L
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
03/15/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JULIEN COTTON and THOMAS BIANCHI
Appeal 2017-003861
Application 13/766,213
Technology Center 3600
Before STEFAN STAICOVICI, JILL D. HILL, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Julien Cotton and Thomas Bianchi (“Appellants”)1 appeal under 35
U.S.C. § 134(a) from the Examiner’s decision in the Final Action (dated
Dec. 30, 2015, hereinafter “Final Act.”) rejecting claims 1—5, 7—16, 18, and
19. We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
1 CGGVERITAS SERVICES SA. is the applicant as provided in 37 C.F.R.
§ 1.46 and is identified as the real party in interest in Appellants’ Appeal
Brief (filed May 26, 2016, hereinafter “Br.”), at page 2.
Appeal 2017-003861
Application 13/766,213
INVENTION
Appellants’ invention relates to “methods for processing repeated
seismic data” by “separating seismic waves having different behaviors over
the time-lapse domain.” Spec. para. 2.
Claims 1, 8, and 12 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A method for processing seismic data acquired with the
same seismic survey setup over long periods of time, the
method comprising:
acquiring sets of seismic data using the same seismic
survey setup over multiple days, the sets being gathered as
repeated seismic data;
estimating a time-variable wavelet corresponding to
unwanted waves;
determining a propagation of the time-variable wavelet,
which propagation is assumed to be constant in time, by solving
an inverse problem using the repeated seismic data and the
estimated time-variable wavelet; and
extracting signal data by subtracting a convolution of the
estimated time-variable wavelet and the propagation from the
repeated seismic data.
REJECTIONS2
I. Claims 1—5, 7—16, 18, and 19 are rejected under 35 U.S.C.
§ 101 as being directed to ineligible subject matter.3
II. Claims 3, 10, and 14 are rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the enablement requirement.
2 The rejection of claims 1—20 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the enablement requirement is withdrawn by the
Examiner. Examiner’s Answer 2 (dated Sept. 19, 2016, hereinafter “Ans.”).
3 The rejection of claims 6, 17, and 20 under 35 U.S.C. § 101 is withdrawn
by the Examiner. Final Act. 7.
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ANALYSIS
The Non-Statutory Subject Matter Rejection
Appellants have not presented arguments for the patentability of
claims 2—5, 7—16, 18, and 19 apart from claim 1. See Br. 4—19. Therefore,
in accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select claim 1 as the
representative claim to decide the appeal of the rejection of these claims,
with claims 2—5, 7—16, 18, and 19 standing or falling with claim 1.
According to the Examiner, the claims are “directed to the abstract
idea of processing data, i.e., mathematical manipulation of data,” and “do
not include additional elements that are sufficient to amount to significantly
more than the judicial exception.” Final Act. 7. In support of this position,
the Examiner lists several activities that have been deemed to amount to
significantly more and asserts that none of the recited recitations involves
any of these activities. Id. at 7—8. The Examiner concludes that the claims
do not even link the abstract idea to a particular technology, because the
claims do not “recite any use of the extracted signal data.” Id. at 8.
Appellants cite to Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct.
2347 (2014) (“Alice”) and Mayo Collaborative Servs. v. Prometheus Labs,
Inc., 566 U.S. 66 (2012) (“Mayo”) and state that these cases should be
followed when deciding subject matter-eligibility and that based on the two-
prong analysis formulated therein (“the Alice/Mayo analysis”), “claim 1 is
not directed to merely an abstract idea, is more than merely data collection
and actually transforms real world seismic data obtained] over time from a
seismic survey setup that includes seismic sensors.” Br. 12. According to
Appellants, “the claimed invention recites specific elements that are used to
generate improved sets of real-world seismic data . . . and applies these
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elements ... to specific areas of technology with tangible, real world
analogs, i.e., actual subsurface structures and reservoirs.” Br. 13—14.
Appellants assert that notwithstanding that the claimed invention is
not directed to an abstract idea, and thus, is subject matter-eligible under the
first prong of the Alice/Mayo analysis, “the claimed invention contains
elements sufficient to ensure that the claimed invention amounts to
significantly more than the judicially recognized exception,” because it
improves the field of seismic imaging by “monitoring target structures in a
subsurface and reservoir production,” and “can be used to made [sic] real­
time changes in reservoir product.” Br. 14. Appellants contend that because
the claims are similar to other cases that were determined to be patent-
eligible based on improving a particular field, the present claims should be
found patent-eligible based on the second prong of the Alice/Mayo analysis
for the same reasons. See Br. 15—19.
The Examiner responds that because Appellants assert that the
claimed process is “directed to a similar process” to that in Research
Corporation Technologies Inc. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir.
2010) (“RCT’), and “can be analogized to” Diamond v. Diehr, 450 U.S. 175
(1981) if1 Diehr”), and because the courts in those cases identified the subject
matter as directed to an abstract idea, Appellants’ claims are also “directed
to an abstract idea.” Ans. 2—3. The Examiner also cites to additional case
law including TDE Petroleum Data Solutions v. AKMEnterprise, 657 Fed.
Appx. 991 (Fed Cir. 2016), where the court reiterated that as in Electric
Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016), claims
generally reciting “collecting information, analyzing it, and displaying
certain results of the collection and analysis” are “a familiar class of claims
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‘directed to’ a patent ineligible concept.” Ans. 4. The Examiner concludes
that, notwithstanding Appellants’ admission, because “none of Appellants’
discussion convincingly establishes that elements such as ‘estimating a time-
variable wavelet’, ‘determination a propagation ... by solving an inverse
problem’, ‘extracting signal data,’ ‘subtracting’, and ‘convolution’ are not
mathematical steps . . . the claimed invention is ‘directed to’ an abstract
idea,” under the first prong of the Alice!Mayo analysis. Ans. 5.
The Examiner further states that under the second prong of the
Alice!Mayo analysis, the claimed invention does not amount to significantly
more than the judicially recognized exception itself, at least because the
claims 1) do not recite “creation of an image,” 2) are “not limited to, e.g.,
noise,” and 3) do not recite “the asserted uses of ‘an improved image of the
subsurface that can be used’ in making ‘real-time changes in reservoir
product.’” Ans. 6 (citing Br. 14). The Examiner notes that unlike Diehr,
“there is no application of the math . . . the claim does not require that the
imaging and reservoir production actually be improved . . . nothing in the
claim calls for the method steps being practiced [] to meet real time
deadlines or constraints, or otherwise being done ‘in real time.’” Ans. 6.
The Examiner also notes that unlike RCT, because the claim does not recite
creating an image, it “does not ‘improve’ the image as per RCT since (1)
there is no image produced, and (2) removing any generic ‘unwanted’ signal
may arguably make the image worse. Nor has there been any indication that
this claimed process uses less memory or has faster computation times like
RCT.'” Id. The Examiner concludes that because the claimed steps are
conventional they do not add “‘significantly more,’ even considering the
claim as a whole.” Ans. 7.
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As the Examiner and Appellants correctly note, the two prong test set
forth in Alice and Mayo controls, and based on the first prong of this test, we
agree with the Examiner that claim 1 is directed to the abstract idea of
“processing data, i.e., mathematical manipulation of data” by estimating a
time-variable wavelet, determining a propagation, solving an inverse
problem, extracting signal data, subtracting, and convoluting methods that
are used to process seismic data acquired with the same seismic survey setup
over long periods of time. Final Act. 7; see also Ans. 3; Spec., paras. 39, 41,
42, 45, and 46. The Federal Circuit previously has determined that similar
claims are directed to patent-ineligible subject matter. See, e.g., Elec.
Power, 830 F.3d at 1353 (finding claims that, inter alia, “collect[]” and
“analyz[e]” information directed to abstract ideas). The Federal Circuit also
has treated collecting information, including when limited to particular
content (which does not change its character as information), as within the
realm of abstract ideas. See, e.g., Internet Patents, 790 F.3d 1343, 1349
(Fed. Cir. 2015); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363
(Fed. Cir. 2015). The Federal Circuit has provided additional guidance on
the issue of statutory subject matter, by holding that claims to collecting
data, recognizing certain data within the collected data set, and storing that
recognized data in memory, were directed to an abstract idea and therefore
unpatentable under § 101. Content Extraction & Transmission LLC v. Wells
Fargo Bank, N.A., 776 F.3d 1343 (Fed. Cir. 2014).
As such, the Examiner is correct that the claims are directed to a
process of gathering and analyzing information of a specified content, with
no particular assertedly inventive technology for performing those functions,
and are therefore directed to an abstract idea. See Ans.4. Although we
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appreciate Appellants’ assertion that the claims recite “specific elements that
are used to generate improved sets of real-world seismic data . . . and
applies these elements ... to specific areas of technology with tangible, real
world analogs, i.e., actual subsurface structures and reservoirs (Br. 13—14),
Appellants provide no evidence that other than generic or conventional
sensors and data processing devices are used, and in addition, the claim does
not recite any improvement “to actual subsurface structures and reservoirs.”
See In re TLI Commc ’ns LLC Patent Litig., 823 F.3d 607, 612 (Fed. Cir.
2016) (finding claims “directed to the use of conventional or generic
technology in a nascent but well-known environment” do not survive Alice
step one).
In conclusion, for the foregoing reasons, we find no error in the
Examiner’s determination that the subject matter of claim 1 is directed to an
abstract idea.
Turning to the second step of Alice, we find claim 1 does not contain
an inventive concept sufficient to “‘transform the nature of the claim’ into a
patent-eligible application.” Alice, 134 S. Ct. at 2355. We agree with the
Examiner that the claims are directed to “gathering data with conventional
elements recited at a high level of generality (and thus, not ‘significantly
more,’ even considering the claim as a whole).” Ans. 7. The claims recite
the use of existing processing technology to perform well-understood,
routine, and conventional activities commonly used in industry. See Alice,
134 S.Ct. at 2359. For example, “acquiring seismic data” using “seismic
survey setup” is a “widely-used technique.” Spec, paras. 2, 3. Current
Federal Circuit precedent establishes, in cases such as this, that the focus is
on how the desired result is achieved and whether the claims “require^
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anything other than conventional computer . . . components operating
according to their ordinary functions,” irrespective of any novelty afforded
to the information generated. Two-Way Media Ltd. v. Comcast Cable
Comm., LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017). Thus, Appellants need
to demonstrate how the claims provide this information using anything other
than conventional computer activity (i.e., collecting information, analyzing
it, and extracting results of the collection and analysis). See Affinity Labs of
Texas, LLCv. DIRECTV, LLC, 838 F.3d 1253, 1263 (Fed. Cir. 2016).
Appellants have not persuasively made such a showing.
Furthermore, we are not persuaded that Appellants’ asserted
“improved image” and “real-time changes” (see Br. 14) serve to add
significantly more, because the claims are not “directed to a specific
improvement to computer functionality” but instead relate to “use of []
abstract mathematical formula [s] on any general purpose computer.” See
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1338 (Fed. Cir. 2016). As
the Examiner correctly notes, “the claim[s] do[] not require that the imaging
and reservoir production actually be improved,” nor require “the method
steps being practiced so as to meet real time deadlines or constraints, or
otherwise being done ‘in real time.’” Ans. 6. Rather, the limitations
identified by Appellants appear to enlarge and refine the ability of a general
purpose computer to perform the mathematical calculations used to “extract
signal data” as recited in claim 1.
Here, like in Alice, the generic computers are merely programmed to
perform the task of analyzing data faster and more efficient than a human.
However, that does not make the invention patent-eligible, because when the
limitations of claim 1 are taken together as an ordered combination, claim 1
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recites an invention directed to processing data using routine or conventional
computer technology.
In conclusion, for the foregoing reasons, claim 1 is directed to the
abstract idea of processing data and, when the claim elements are considered
both individually and as an ordered combination, the claim does not recite
significantly more than the abstract idea. Therefore, for the foregoing
reasons, we sustain the rejection under 35 U.S.C. § 101 of claim 1 as being
directed to patent ineligible subject matter. Claims 2—5, 7—16, 18, and 19
fall with claim 1.
The Enablement Rejection
According to the Examiner, because the estimated time-variable
wavelet and the Fourier transform of the time variable wavelet constitute
vectors “no inverse matrix can be defined. Thus, one of ordinary skill in the
art would be unable to practice the [recited] ‘calculating an inverse’ step.”
Final Act. 10.
Appellants assert that the Fourier transformations recited in claims 3,
10, and 14 “are all signal processing techniques that are well known and
understood by one of skill in the art.” Br. 23. According to Appellants, one
of ordinary skill in the art would understand what data is being manipulated,
and “would be able to obtain the matrices and inverses,” as recited. Br. 23—
24.
We appreciate the Examiner’s position that an inverse matrix cannot
be calculated from the product of a vector and its transpose because the
determinant vanishes. See Final Act. 9-10. However, Appellants explain
that each of the matrices of repeated seismic data (rsr) and pure unwanted
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wave data (pwu) describes “a matrix of values across multiple measurements
[m] and multiple samples [n] in each measurement.” Br. 23—24. In the
Answer, the Examiner does not respond to Appellants’ position to explain
why such matrices are vectors, rather than m x n matrices. As such, the
Examiner has not provided adequate evidence or technical reasoning that
“one of ordinary skill in the art would be unable to practice the ‘calculating
an inverse’ step” without undue experimentation.
Accordingly, we do not sustain the Examiner’s enablement rejection
of claims 3, 10, and 14.
DECISION
The Examiner’s rejection of claims 1—5, 7—16, 18, and 19 as being
directed to patent ineligible subject matter is affirmed.
The Examiner’s rejection of claims 3, 10, and 14 as failing to comply
with the enablement requirement is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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