Ex Parte GRION

Patent Trial and Appeal Board

Oct 23, 2018

13670900 (P.T.A.B. Oct. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/670,900 11/07/2012 Sergio GRION
11171 7590 10/25/2018
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
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.
0336-082_100181 1056
EXAMINER
ARMSTRONG, JONATHAN D
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
10/25/2018 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):
Mailroom@ppblaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SERGIO GRION
Appeal2018-000595
Application 13/670,900 1
Technology Center 3600
Before LINDA E. HORNER, BRETT C. MARTIN, and LISA M. GUIJT,
Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's rejections of claims 1-20. Final Office Action (February 27,
2017) ("Final Act."). We have jurisdiction under 35 U.S.C. § 6(b ).
Appellant contests the Examiner's rejection of the claims as directed
to patent ineligible subject matter. The question presented by this appeal is
1 CGGVeritas Services SA ("Appellant") is the applicant under 37 C.F.R.
§ 1.46 and the real party in interest. Appeal Brief ( July 1 7, 2017) ("Appeal
Br."), at 2.
Appeal2018-000595
Application 13/670,900
whether the claims are directed to an abstract idea. We find that they are
not.
Appellant also contests the Examiner's rejections of claims as obvious
over two different combinations of prior art. The question presented by
these rejections is whether either combination of prior art renders obvious:
( 1) establishing equations, expressed as a function, that relate seismic data
acquired on a non-flat datum to desired up-going and down-going wave
fields on a second planar datum, wherein the functions include extrapolator
operators for extrapolating the desired wave fields to the second planar
datum, and (2) solving with an inversion procedure to obtain the desired
up-going and down-going wave fields for a second planar datum. The
Examiner has not demonstrated sufficiently how the combined teachings of
the cited prior art would have led one having ordinary skill in the art to the
technique claimed.
Thus, we REVERSE the Examiner's adverse decision on the
patentability of claims 1-20.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to "mechanisms and techniques for
separating up-going and down-going wave fields from seismic data recorded
underwater or under the surface of the earth by a seismic receiver."
Specification (November 7, 2012) ("Spec.") ,r 1. Claims 1, 10, and 20 are
the independent claims. Claim 1 is illustrative of the subject matter on
appeal and is reproduced below.
1. A method for generating an image based on
separating up-going and down-going wave fields (U, D) in
seismic data related to a subsurface of a body of water, or to a
subsurface of a body of rock, the method comprising:
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receiving seismic data (Po, Z0) recorded in the time-space
domain with seismic recorders distributed on a first datum,
wherein the first datum is non-flat;
transforming the seismic data (Po, Zo) from the time-space
domain to transformed seismic data for water pressure (P) and
transformed seismic data for particle velocity (Z), in another
domain;
establishing, in the another domain, a mathematical
relation that relates ( 1) the transformed seismic data for water
pressure (P) to desired up-going and down-going wave fields
(U, D), wherein the transformed seismic data for water pressure
(P) is expressed as a first function of the desired up-going and
down-going wave fields (U, D) on a second planar datum, and
(2) the transformed seismic data for particle velocity (Z) to the
desired up-going and down-going wave fields (U, D), wherein
the transformed seismic data for particle velocity (Z) is expressed
as a second function of the desired up-going and down-going
wave fields (U, D) on the second planar datum;
solving with an inversion procedure, run on a processor,
the first and second functions to obtain the desired up-going and
down-going wave fields (U, D) for the second datum; and
generating the image based on at least one of the desired
up-going and down-going wave fields (U, D) for the second
datum,
wherein the second datum is different from the first datum,
wherein each of the first and second functions includes
extrapolator operators for extrapolating the desired up-going and
down-going wave fields (U, D), respectively, to the second
datum.
Appeal Br. 27-28 (Claims Appendix). Independent claim 10 is directed to a
computing device for generating an image, including an interface for
receiving seismic data and a processor configured to perform substantially
the same steps recited above in claim 1. Id. at 29-30. Independent claim 20
is directed to a non-transitory computer readable medium including
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instructions for performing substantially the same steps recited above in
claim 1. Id. at 32-33.
EVIDENCE
The Examiner relies upon the following evidence:
Robertsson
Sollner
GB 2 405 473 A
AU 2009212893 Al
Mar. 2, 2005
Apr. 29, 2010
A. Ziolkowski et al., "Multiple wavefields: separating incident from
scattered, up from down, and primaries from multiples," SEG Technical
Program Expanded Abstracts, Society of Exploration Geophysicists, 1998,
pp. 1499-1502 ("Ziolkowski").
G. Schuster, "Equations for Redatuming Seismic Data by an Asymptotic
Inverse," www.utam.gg.utah.edu/tomo05/05_ann/PDF/jerry_inter_GRT_
single.pdf, February 6, 2006 ("Schuster").
Applicant Admitted Prior Art, Appeal Brief (March 4, 2016), 17: 14-17
and 21 :9-11 ("AAP A").
REJECTIONS
The Final Office Action includes the following rejections:
1. Claims 1-20 stand rejected under 35 U.S.C. § 101 as directed to
patent ineligible subject matter.
2. Claims 1-20 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Ziolkowski and Robertsson.
3. Claims 1-20 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Sollner, AAP A, and Schuster.
ANALYSIS
Re} ection under 3 5 US. C. § 101
Appellant argues that the claims, when viewed as a whole, are not
directed to an abstract idea because the water pressure and particle velocity
measurements collected by the seismic recorders are combined via equations
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to obtain up-going and down-going wave fields used to generate an image of
an underground formation. Appeal Br. 9-10 ( citing Thales Visionix Inc. v.
US., 850 F.3d 1343 (Fed. Cir. 2007)). The Examiner responds that the steps
of "receiving," "transforming," "establishing," "solving," and "generating"
are "similar to abstract idea steps." Ans. 4. The Examiner also responds
that the claims do not recite "seismic survey equipment." Id. The Examiner
distinguishes Thales, stating, "'Thales' is 'directed to' physical inertial
sensors which measure the position of an object." Id. at 5.
Under Alice, first, we "determine whether the claims at issue are
directed to a patent-ineligible concept." Alice Corp. v. CLS Bankint'l, 134
S. Ct. 2347, 2355 (2014). If so, we "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." Id.
at 2357 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 72, 79 (2012)). "While the two steps of the Alice framework are
related, the 'Supreme Court's formulation makes clear that the first-stage
filter is a meaningful one, sometimes ending the§ 101 inquiry."' Thales
Visionix Inc. v. US., 850 F.3d 1343, 1346 (Fed. Cir. 2017) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)). At
step one, "it is not enough to merely identify a patent-ineligible concept
underlying the claim; we must determine whether that patent-ineligible
concept is what the claim is 'directed to."' Rapid Litig. Mgmt. Ltd. v.
CellzDirect, Inc., 827 F.3d 1042, 1050 (Fed. Cir. 2016).
The Federal Circuit recently explained that claimed subject matter has
been found to be patent eligible in cases where the claims "had the
specificity required to transform a claim from one claiming only a result to
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one claiming a way of achieving it." SAP America, Inc. v. InvestPIC, LLC,
898 F.3d 1161, 1167 (Fed. Cir. 2018) (citations omitted). For example, in
McRO, the court held patent eligible claims limited to rules with specific
characteristics for producing accurate and realistic lip synchronization and
facial expression in animated characters. McRO, Inc. v. Bandai Namco
Games America Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016). In Finjan, the
court held claims patent eligible because they recited specific steps-
generating a security profile that identifies suspicious code and linking it to a
downloadable-that accomplished the desired result. Finjan, Inc. v. Blue
Coat Sys., Inc., 879 F.3d 1299, 1305---06 (Fed. Cir. 2018)
By contrast, the court held claims that recite only the desired result
without the particular way of achieving the result are directed to an abstract
idea. For example, in Apple, the court invalidated claims related to a
computer system that can generate a second menu from a first menu based
on a selection of items on the first menu because the claims "d[id] not claim
a particular way of programming or designing the software ... but instead
merely claim the resulting systems." Apple, Inc. v. Ameranth, Inc., 842 F.3d
1229, 1241 (Fed. Cir. 2016). Similarly, in Affinity Labs, the court held that a
claim related to wirelessly communicating regional broadcast content to an
out-of-region recipient was abstract and patent ineligible because there was
nothing in the claim "directed to how to implement [the idea]. Rather, the
claim is drawn to the idea itself." Affinity Labs of Texas, LLC v. DIRECTV,
LLC, 838 F.3d 1253, 1258, 1265 (Fed. Cir. 2016). See also Two-Way
Media, Ltd. v. Comcast Cable Communications, LLC, 874 F.3d 1329, 1337
(Fed. Cir. 2017); Secured Mail Solutions LLC v. Universal Wilde, Inc., 873
F.3d 905, 910 (Fed. Cir. 2017); RecogniCorp, LLC. v. Nintendo Co., 855
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F.3d 1322, 1326 (Fed. Cir. 2017); Intellectual Ventures I LLC v. Symantec
Corp., 838 F.3d 1307, 1316 (Fed. Cir. 2016).
In this case, the desired result, recited in the "generating step," is to
generate an image based on one of the desired up-going and down-going
wave fields for the second planar datum. The claims are not limited to this
desired result. Rather, the claims recite in the "establishing" and "solving"
limitations specific steps for generating the desired image. For instance, the
claims recite using specific functions that include extrapolator operators to
relate the acquired and transformed seismic data to the desired up-going and
down-going wave fields (U, D) on the second planar datum. The claims also
recite solving the functions using an inversion procedure to obtain the
up-going and down-going wave fields (U, D) for the second planar datum.
Thus, the claims are not directed to generic processes and machinery or a
particular desired result or effect. Rather, the claims are directed to a
specific method for achieving the result.
The court in SAP America also contrasted the claims before it with the
claims at issue in Thales, describing that the claims in Thales were directed
to an improvement in a physical tracking system. SAP America, 898 F.3d
1168. By contrast, the court stated that the claims at issue before it, directed
to performing statistical analyses of investment information, were focused
not on a physical-realm improvement, but on improvement in wholly
abstract ideas-the selection and mathematical analysis of information,
followed by reporting or display of the results. Id.
In this appeal, the claims are directed to generating an image of a
subsurface of a body of water or a subsurface of a body of rock using
seismic data recorded with seismic recorders distributed on a first, non-flat
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datum. Akin to the claims before the court in Thales, the claims here are
directed to a physical-realm improvement.
For these reasons, we disagree with the Examiner's determination that
the claims are directed to an abstract idea. 2 Thus, we do not sustain the
rejection of independent claims 1, 10, and 20, and their dependent claims 2-
9 and 11-19, under 35 U.S.C. § 101 as being directed to patent ineligible
subject matter.
Rejection under 35 USC§ 103(a) based on Ziolkowski and Robertsson
The Examiner found that Ziolkowski discloses a method for
generating an image based on separating up-going and down-going wave
fields (U, D) in seismic data including the "receiving," "transforming,"
"establishing," "solving," and "generating" steps of each independent claim,
except that Ziolkowski does not explicitly teach: (1) wherein the first datum
is non-flat, (2) up-going and down-going wave fields (U, D) on a second
planar datum, (3) generating the image based on at least one of the desired
up-going and down-going wave fields (U, D) for the second datum,
( 4) wherein the second datum is different from the first datum, and
( 5) wherein each of the first and second functions includes extrapolator
operators for extrapolating the desired up-going and down-going wave fields
(U, D), respectively, to the second datum. Final Act. 4-7.
The Examiner turned to Robertsson for these missing teachings. Id. at
7-8. The Examiner determined that it would have been obvious to modify
2 Appellant also argues that the claims, even if directed to an abstract idea,
recite significantly more than the abstract idea. Appeal Br. 10-12 ( citing
Research Corp. Techs. Inc. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir.
2010)). Because we find that the claims are not directed to an abstract idea,
we need not proceed to step two. Alice, 134 S. Ct. at 2355.
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Ziolkowski with the teaching of Robertsson so that seismic data obtained by
streamers floating in the sea and/or surface bottom receivers may be
time/phase corrected to appear as though the data was obtained at the same
sensor/source positions so that the data may be adjusted so as to be
comparable. Id. at 8.
Appellant argues that Ziolkowski does not disclose functions that
include extrapolator operators for extrapolating the desired up-going and
down-going wave fields to a second planar datum and that Robertsson does
not cure this deficiency in Ziolkowski. Appeal Br. 19. The Examiner
acknowledges that Ziolkowski does not teach a first non-flat datum and does
not teach using functions that include extrapolator operators for
extrapolating the desired up-going and down-going wave fields (U, D) to a
second planar datum. Final Act. 7. Thus, we look to Robertsson to
determine if it cures these deficiencies in Ziolkowski.
Robertsson discloses a system for conducting marine seismic survey
that uses either streamers towed behind a vessel, vertical seismic profiling,
or ocean bottom cable acquisition techniques. Robertsson, 4: 11-13.
Robertsson describes acquiring two sets of data, i.e., two surveys, that differ
in the travel time of signals through the body of water located above the
receivers. Id. at 4: 15-17. The invention corrects one or both sets of signals
for amplitude and/or other mismatches using a filter derived from matching
clearly identifiable events in both data sets. Id. at 4: 19-22. The invention
also corrects for effects of rough sea. Id. at 4:24-27.
In one embodiment, Robertsson discloses conducting two surveys
over the same section of seabed with both source and streamer at identical
positions with the vessel at two different heights relative to the seafloor. Id.
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at 6:27-31. Robertsson then separates the data sets into up-going U and
down-going D wave fields. Id. at 7:25-26. Robertsson describes using a
matched filter to remove differences due to variations between the two
surveys or due to variations in receiver depths, e.g., to match data acquired
during the same survey but with receivers at different locations. Id. at 8:23-
9: 11. To remove differences due to variations between two surveys,
Robertsson describes, "The matched filter can be determined by matching
data acquired through both surveys in a window where no multiples are
present such as the first water bottom arrival." Id. at 8:28-31. To remove
differences due to variations in receiver depths during the same survey, such
as might occur when using the twin streamer methods proposed in U.S.
Patent Application Publication No. 2003/0147306 Al, Robertsson discloses
that a matched filter or operator can be used to "move" data acquired by two
different streamers at the same survey to the same position relative to the
seafloor. Id. at 9:9-14. Robertsson teaches that such methods of
extrapolating data are "sometimes collectively referred to as redatuming or
wavefield extrapolation." Id. at 9: 14-17. It is not clear to us, and the
Examiner has not demonstrated adequately on the record, that the matched
filter technique disclosed in Robertsson for moving data acquired by two
different streamers during the same survey involves the same functions
recited in the "establishing" and "solving" steps of the independent claims.
For instance, the Examiner reads this portion of Robertsson as
teaching to use this matched filter to match data acquired from a non-flat
datum that occurs due to rough seas. Ans. 5 ( citing Robertsson, 9: 1-20).
Robertsson does not discuss correcting for receivers at different depths on a
single streamer resulting from rough seas in the paragraph on page 9 relied
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on by the Examiner. Rather, the matched filter and other methods disclosed
in the paragraph on page 9 relate to moving entire data sets acquired from
different streamers during a single survey. Robertsson 9:9-14.
Robertsson describes a technique for accommodating for rough seas
on page 10. It is not clear whether Robertsson's reference to "rough seas"
implies accommodating for receivers at different depths on a single
streamer, i.e., a non-flat datum, or whether this reference implies
accommodating for variations imparted by the rough seas between the data
sets recorded by receivers of two separate streamers. Robertsson describes
the use of filter Fm, which can be computed by minimizing energy around
an interpreted window around the first water bottom reverberations or which
can be derived from other methods. Id. at 10:27-11:17. The Examiner has
not provided adequate findings as to how the techniques described in
Robertsson of employing filter Fm to accommodate for rough seas disclose
the "establishing" and "solving" steps of the independent claims on appeal.
For these reasons, we do not sustain the rejection of claims 1-20
under 35 U.S.C. § 103(a) as unpatentable over Ziolkowski and Robertsson.
Rejection under 35 USC§ 103(a) based on Sollner, AAPA, and Schuster
The Examiner found that Sollner discloses substantially all of the
steps of the independent claims except that Sollner "implies but does not
explicitly teach solving with an inversion procedure." Final Act. 11-14.
The Examiner found that "AAP A teaches solving with an inversion
procedure." Id. at 14. The Examiner determined that it would have been
obvious to use an inversion procedure in Sollner for the solving step to apply
time shifts to the data so that the traces appear to be generated and recorded,
respectively, by sources and receivers related to a deeper datum. Id. (citing
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Schuster 1 (Introduction), 4 sec. 1, 5 (Surface 3D CDP), 5 (Asymptotic
Redatuming) ).
Appellant argues that Sollner' s equations relate the pressure data P
and the particle velocity V to their corresponding up-going and down-going
components, but not to general up-going and down-going wave fields U and
D. Appeal Br. 23. Appellant contends that AAPA does not cure this
deficiency because AAP A indicates that inversion methods are known in the
art, but does not teach or suggest applying the inversion method to calculate
up-going and down-going wave fields U and D. Id. Appellant argues that
the Examiner's proposed reason to modify Sollner to use inversion to solve
for U and Dis "not germane" and is "confusing." Id. at 24.
Sollner's teaching is similar to the claimed invention. In particular,
Sollner recognizes that in a realistic marine environment, the seismic
receivers on a towed streamer do not form an ideally horizontal acquisition
surface. Sollner ,r 26 ( acknowledging that in a realistic marine environment,
the acquisition surface is not necessarily flat), ,r 27 (showing in Figure lB a
smoothly shaped, non-flat acquisition surface). Sollner addresses this
problem using an "arbitrary flat observation level 18" between non-flat
acquisition level 14 and sea surface 13. Id., Fig. lB. However, Sollner
appears to generate the image using flat observation level 18 via a different
technique from the claimed method.
Sollner teaches that motion sensors on the streamers will sense a
normal velocity wave field in a direction normal to the acquisition surface at
that point. Id. ,r 27. Sollner teaches decomposing the normal velocity wave
field and the pressure wave field measured on non-flat acquisition surface 14
into up-going and down-going pressure components and up-going and
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down-going particle velocity components on planar observation level 18. Id.
,r 30, Fig. 2 (block 20). These components are then extrapolated iteratively
in steps from observation level 18 toward sea surface 13. Id. ,r 31, Fig. 2
(block 21 ). The extrapolated components are then used to determine an
image point and a reflection coefficient of the sea surface at the image point.
Id. ,r 32, Fig. 2 (block 22).
As explained in further detail in Figures 3 through 5 of Sollner, rather
than solving generally for U and D, Sollner determines individual up-going
and down-going particle velocity components on planar observation level 18
and determines individual up-going and down-going pressure components
on planar observation level 18. Thus, Sollner does not generate the image
based on at least one of the desired up-going and down-going wave fields
(U, D). Instead, Sollner extrapolates the individual components iteratively
in steps from observation level 18 to the sea surface to determine an image
point and a reflection coefficient. Thus, although Sollner is directed to
solving the same problem as addressed by Appellant's claimed invention,
Sollner appears to solve the problem in a different way.
We agree with Appellant that the Examiner has not explained
adequately why one having ordinary skill in the art would have been led to
modify Sollner in the manner claimed in view of AAPA and/or Schuster. As
noted by Appellants, AAP A shows only that solving functions using
inversion procedures was known in the art. In the prior Appeal Brief (March
4, 2016) relied on by the Examiner as the admitted prior art, Appellant
acknowledges that inversion techniques are known techniques for solving
equations. AAP A 17, 21. AAP A does not show that it was known to use
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inversion techniques to solve the claimed functions to obtain the desired
up-going and down-going wave fields (U, D).
Schuster teaches that it was known in the art to use redatuming to
apply time shifts to seismic data so that the traces appear to be generated and
recorded, respectively, by sources and receivers relocated to a deeper datum.
Schuster 1 (Introduction). Schuster discloses applying, for example,
Kirchoff extrapolation to introduce these time shifts to mitigate
elevation-induced distortions in the data. Id.
Sollner, however, already teaches a technique for mitigating for
elevation-induced distortions in the data. The Examiner has not explained
adequately what would have prompted one having ordinary skill in the art to
modify the technique of Sollner in the manner claimed in light of Schuster.
The Examiner's reliance on Schuster's disclosure that redatuming is useful
for correcting distortion due to irregular surface topography is not sufficient,
without more, to suggest modifying Sollner's redatuming method to the
method claimed.
For these reasons, we do not sustain the rejection of claims 1-20
under 35 U.S.C. § 103(a) as unpatentable over Sollner, AAPA, and Schuster.
DECISION
The decision of the Examiner rejecting claims 1-20 is reversed.
REVERSED
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