Ex Parte Eick et alDownload PDFPatent Trial and Appeal BoardAug 14, 201813185169 (P.T.A.B. Aug. 14, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/185,169 07/18/2011 28841 7590 ConocoPhillips Company 600 North Dairy Ashford Houston, TX 77079-1175 08/16/2018 FIRST NAMED INVENTOR Peter M. Eick 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 41606US 1801 EXAMINER MURPHY, DANIELL ART UNIT PAPER NUMBER 3645 NOTIFICATION DATE DELIVERY MODE 08/16/2018 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): Legal-IP@conocophillips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PETER M. EICK, JOEL D. BREWER, and FRANK D. JANISZEWSKI Appeal2017-010342 Application 13/185, 169 Technology Center 3600 Before LISA M. GUIJT, and NATHAN A. ENGELS, and SEAN P. O'HANLON, Administrative Patent Judges. GUIJT, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's rejection2 of claims 1-12, 14--20, 22-24, and 26-28. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 Appellants identify CONOCO PHILLIPS COMP ANY as the real party in interest and Applicant. Br. 1. 2 Appeal is taken from the Final Office Action dated August 11, 2016. Appeal2017-010342 Application 13/185,169 STATEMENT OF THE CASE Claim 1, reproduced below as the sole independent claim on appeal, is exemplary of the subject matter on appeal, with disputed limitations italicized for emphasis. 1. A process for acqmnng seismic data and providing information about geologic structures in the earth, wherein the process compnses: a) providing a plurality of seismic receivers to receive se1sm1c energy; b) providing at least one pulse type seismic source to emit pulses of seismic energy into the earth; c) delivering a distinctive non-orthogonal series of pulses of seismic energy into the earth from the at least one pulse type seismic source to create a seismic energy wavefield response from geologic structures in the earth where the distinctive series of pulses of seismic energy are delivered in a loop from said at least one pulse type seismic source in a planned order where the loop is of sufficient length to provide listening time to receive the wave field response from the geologic structures in the earth from a portion of the loop defined as a composite pulse before the distinctive series of pulses of the loop end and may be restarted or have infinite length and wherein the series of pulses within the loop are sufficiently distinctive such that portions of the loop are recognizably distinct from other portions of the loop and the distinctions are sufficient to distinguish the wavefield caused by the loop from seismic energy in the environment that arises from other sources; d) receiving seismic energy with the plurality of seismic receivers including the seismic energy wavefield response from the geologic structures in the earth; e) recording the seismic energy wavefield response received by the seismic receivers to form data traces; and f) processing the data traces of recorded seismic energy to separately identify within the data traces each of the composite pulses of the pulse type seismic source when the composite pulses were fired and to further separately identify a number of segments of data within each loop where each segment overlaps 2 Appeal2017-010342 Application 13/185,169 at least one composite pulse and by processing the segments of data provides for greater data density of the geologic structures in the earth. THE REJECTIONS I. Claims 1, 3, and 8-10 stand rejected under 35 U.S.C. § I02(b) as anticipated by Robertsson (US 7,492,665 B2; issued Feb. 17, 2009). II. Claims 2, 4, and 5 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Robertsson and Duren (US 5,142,498; issued Aug. 25, 1992). III. Claim 6 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Robertsson and Ritter (US 3,687,218; issued Sept. 29, 1972). IV. Claim 7 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Robertsson, Ritter, and Duren. V. Claims 11 and 14 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Robertsson and Vaage (US 6,906,981 B2; June 14, 2005). VI. Claim 12 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Robertsson, Vaage, and Kimura (US 2006/0083109 Al; Apr. 20, 2006). VII. Claim 15 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Robertsson, Vaage, and Duren. VIII. Claims 16 and 26 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Robertsson and Henne (US 7,634,941 B2; Dec. 22, 2009). IX. Claims 17-19, 22, and 23 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Robertsson and Hackett (US 4,223,399; Sept. 16, 1980). X. Claims 20 and 24 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Robertsson, Kimura, and Passmore (US 4,800,538; Jan. 24, 1989). 3 Appeal2017-010342 Application 13/185,169 XI. Claims 27 and 28 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Robertsson and Silverman (US 4,144,949; Mar. 20, 1979). XII. Claims 1-12, 14--20, 22-24, and 26-28 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-26 of Eick (US 8,818,730; issued Aug. 26, 2014). ANALYSIS Rejection I Regarding independent claim 1, the Examiner finds, inter alia, that Robertsson discloses delivering a distinctive non-orthogonal series of pulses of seismic energy. Final Act. 3--4 (citing Robertsson 1:50-2:65, 6:20--45; 7: 18-21, Fig. 2A). The Examiner determines that "the two series shown in FIG. 2A do not satisfy Robertsson's definition [of orthogonal, as provided at column 6, lines 26 to 28]" and "thus, Robertsson discloses use of distinctive non-orthogonal series." Id. at 4. The Examiner explains that "[a] mistake in one place in Robertsson asserting that the lower and upper sequences are orthogonal does not change the fact that Robertsson does indeed teach the non-orthogonality of the two series shown in Robertsson's FIG. 2A, by Robertsson's own definition of orthogonality." Id. at 2 (citing Robertsson 6:25-27, 30-31 ). Appellants argue that [Robertsson] clearly states in multiple if not all instances that FIGS. 2A-2B illustrate mutually orthogonal sequences. These instances include "FIGS. 2A-2B [which] illustrate mutually orthogonal encoding sequences and their application for seismic source encoding in accordance with implementations of various technologies described herein (col. 3, lines 15-19)," "FIGS.2A- 2B illustrate mutually orthogonal encoding sequences ( col. 6, 4 Appeal2017-010342 Application 13/185,169 lines 10-11 )," "[ u ]sing orthogonal sequences as described in FIGS. 2A-B, two or more source groups may be fired simultaneously to obtain this data.["] Br. 3. Appellants also argue that Robertsson "does not appear to suggest or teach shifting of 'the lower sequence in time by 1;"' rather, according to Appellants, Figures 2A and 2B depict that "the spikes in sequence 220 never overlap with the spikes in sequence 230." Id. Therefore, Appellants contend, "[i]t does not appear that [Robertsson] explicitly describes non- orthogonal sequences." Id. The Examiner responds that Robertsson discloses, with reference to Figures 2A and 2B, that [ t ]he requirements for the cross-correlation and auto-correlation may be relaxed, as long as the main lobe of the auto-correlation is narrow and has an amplitude that is substantially greater than the side-lobes of the auto-correlation as well as the noise- level in the cross-correlation resulting from imperfect orthogonality. Ans. 5 (citing Robertsson 7:42--48). The Examiner determines that "[t]his clearly supports an interpretation that strict orthogonality (i.e., zero-cross- correlation for all time shifts) is not a requirement for the practice of Robertsson's invention, nor does Robertsson preclude, or teach away from, the use of distinctive non-orthogonal sequences." Id. at 4--5. The Examiner determines that "Robertsson considers such 'non-strict' or 'relaxed' orthogonality to be within the meaning of 'in accordance with implementations of Robertsson's disclosed technologies." Id. at 5. Alternatively, the Examiner determines that "the simple observation that the two sequences in FIG. 2A are not mutually orthogonal, in the strict sense of 'the cross-correlation between any pair of sequences' for all time shifts being substantially zero." Ans. 5 (emphasis added). The Examiner explains that 5 Appeal2017-010342 Application 13/185,169 Id. [t]he sequence 220 in FIG. 2A has pulses indicated at 1 T, 3T, 6T, and 7T. The sequence 230 in FIG. 2A has pulses at 0, 2T, 4T, and 5T. Thus, as shown, none of the pulses in the two sequences occur at the same time. The two sequences have no overlap for a time shift of O. For a prior art reference to anticipate a claim, it must disclose all of the limitations of the claim, "arranged or combined in the same way as in the claim." Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1370 (Fed. Cir. 2008). Figure 2A of Robertsson is reproduced below. Fig. 2A Iii I Iii I Iii 4. Ume 1T 2T 3T 4T ST 6T 7T time Figure 2A of Robertsson "illustrates a simplified example of a pair of digital sequences in accordance with implementations of various technologies described [in Robertsson ],"wherein"[ s ]equence 220 may be represented digitally as (0, 1, 0, 1, 0, 0, 1, 1) and sequence 230 may be represented digitally as (1, 0, 1, 0, 1, 1, 0, O)." Robertsson 6:46-50. Robertsson continues to explain that sequences 220 and 230 may also be represented as activated or non-activated sources. As such, "1" may indicate an activation of the source at a point in time, which may be represented as a spike. On the other hand, "O" may indicate that the source is silent, or not activated, at a point in time. 6 Appeal2017-010342 Application 13/185,169 Id. at 6:50-55. Robertsson discloses that Figures 2A and 2B "illustrate mutually orthogonal encoding sequences and their application for seismic source encoding in accordance with implementations of various technologies described herein." Id. at 6: 10-13; see also id. at 6:37--41 ("By utilizing orthogonal sequences, the response from each source group may be decoded, and thus isolated from the superposition of responses from all the other source groups by cross-correlation with each encoding sequence."). Notably, the Specification, as originally filed, does not use either of the terms "orthogonal" or "non-orthogonal" to describe the distinctive series of pulses of seismic energy. 3 As determined by the Examiner, Robertsson discloses that "[ e Jach sequence may be orthogonal to all the other sequences, which means that the cross-correlation between any pair of sequences is substantially zero for all time-shifts, while the auto-correlation ( e.g. the correlation of a sequence with itself) has a large value only for the zero time- shift and is substantially zero for all non-zero time shifts." Robertsson 6:19- 31. We do not agree with the Examiner that Robertsson's disclosure of an "imperfect orthogonality" discloses purposefully delivering a non- orthogonal series of pulses of seismic energy, as claimed. Rather, a 3 Appellants added the claim term "non-orthogonal" to independent claim 1 by an Amendment dated March 3, 2015. Appellants submitted that "[cJlaim 1 has been amended to overcome [the rejection of claim 1 as anticipated by Robertsson ]" and that "[ c Jlaim 1 now recites 'firing a distinctive non- orthogonal series of pulses of seismic energy."' 3-3-2015 Amendment, p. 9. Appellants concluded that "[ n Jo new matter has been added," without reference to the Specification. Id. In the Appeal Brief, Appellants refer to Figure 3 of the Specification for disclosing "[ dJelivering a distinctive non- orthogonal series of pulses of seismic energy," as claimed. Br. 2. 7 Appeal2017-010342 Application 13/185,169 preponderance of the evidence supports Appellants' argument that Robertsson consistently describes Figure 2A as delivering an orthogonal series of pulses of seismic energy. See, e.g., 3: 16-19 ("FIGS. 2A-B illustrate mutually orthogonal encoding sequences and their application for seismic source encoding in accordance with implementations of various technologies described herein."). Moreover, in view of Robertsson's consistent description of Figure 2A as depicting orthogonal sequences and lack of disclosure for time- shifting either sequence 220, 230 with respect to the other, the Examiner's application of Robertsson' s definition of "orthogonal" to Figure 2A to arrive at a different result is not sufficiently supported by the evidence on the record. For example, Robertsson's definition of "orthogonal," as applied to Figure 2A, may mean that the "time-shift" refers to the points along the x- axis (i.e., 0, 1 T, 2T, etc.) rather than to applying a shift in time to sequence 220, as proposed by the Examiner. In this respect, the Examiner appears to be proposing a modification to Robertsson's invention, but such a modification cannot support a finding that Robertsson anticipates claim 1. Accordingly, we cannot not sustain the Examiner's rejection of independent claim 1, and claims 3 and 8-10 depending therefrom. Rejections II-XI The Examiner's reliance on secondary references in the rejection of claims 2, 4--7, 11, 12, 14--20, 22-24, and 26-28 under 35 U.S.C. § 103(a) does not cure the deficiencies in the Examiner's rejection of independent claim 1, as set forth supra. Therefore, we also do not sustain the Examiner's rejection of claims 2, 4--7, 11, 12, 14--20, 22-24, and 26-28. 8 Appeal2017-010342 Application 13/185,169 Re} ection XII To the extent Appellants have not advanced separate, substantive arguments for particular claims or issues, such arguments are considered waived. See 37 C.F.R. § 4I.37(c)(1)(iv)(2015); see also Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) ("When the appellant fails to contest a ground of rejection to the Board, ... the Board may treat any argument with respect to that ground of rejection as waived."). Additionally, "[i]f a ground of rejection stated by the examiner is not addressed in the appellant's brief, appellant has waived any challenge to that ground of rejection and the Board may summarily sustain it unless the examiner subsequently withdrew the rejection in the examiner's answer." MPEP § 1205.02 (9th ed. Rev. 08.2017, Jan. 2018). Because Appellants do not address the Examiner's rejection of claims 1-12, 14--20, 22-24, and 26-28 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-26 of Eick, we summarily affirm this rejection by the Examiner. Final Act. 26; Br. 1--4; Ans. 7. DECISION The Examiner's rejection of claims 1, 3, and 8-10 under 35 U.S.C. § 102(b) is REVERSED. The Examiner's rejection of claims 2, 4--7, 11, 12, 14--20, 22-24, and 26-28 under 35 U.S.C. § 103(a) is REVERSED. The Examiner's rejection of claims 1-12, 14--20, 22-24, and 26-28 on the grounds of nonstatutory obviousness-type double patenting is AFFIRMED. 9 Appeal2017-010342 Application 13/185,169 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 10 Copy with citationCopy as parenthetical citation