Ex Parte Hegna

Patent Trial and Appeal Board

Jan 31, 2018

14074190 (P.T.A.B. Jan. 31, 2018)

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.
14/074,190 11/07/2013 Stian Hegna PGS-13-19US-2 2584
136766 7590
MHKKG (PCS)
P.O. BOX 398
AUSTIN, TX 78767-0398
EXAMINER
NOLAN, JOHN T
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
02/02/2018 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):
patent_docketing@intprop.com
ptomhkkg @ gmail .com
docketing@pgs.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STIAN HEGNA
Appeal 2017-005573
Application 14/074,190
Technology Center 3600
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
PGS Geophysical AS (“Appellant”)1 appeals under 35 U.S.C.
§ 134(a) from the Examiner’s decision rejecting claims 1—21, which are all
the pending claims. See Appeal Br. 1. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We REVERSE and enter NEW GROUNDS OF REJECTION
pursuant to our authority under 37 C.F.R. § 41.50(b).
1 PGS Geophysical AS is the applicant, as provided in 37 C.F.R. § 1.46,
and is identified as the real party in interest. Appeal Br. 3.
Appeal 2017-005573
Application 14/074,190
CLAIMED SUBJECT MATTER
Appellant’s disclosed invention relates to geophysical surveys. See
Spec. 12. Claims 1,11, and 17 are independent. Claim 1, reproduced
below with emphasis added, is illustrative of the subject matter on appeal.
1. A method of geophysical data processing, comprising:
obtaining, at a geophysical data processing system,
geophysical data specific to a geophysical formation, wherein
the geophysical data includes:
a first set of data representative of a first particle
motion signal and a first pressure signal, wherein the first
particle motion signal and the first pressure signal are
each recorded using geophysical sensors towed at a first
depth; and
a second set of data representative of a second
particle motion signal and a second pressure signal,
wherein the second particle motion signal and the second
pressure signal are each recorded using geophysical
sensors towed at a second, greater depth;
generating, by the geophysical data processing system,
information corresponding to first and second wave separation
equations from the first and second sets of data respectively,
wherein the first and second wave separation equations each
include a cross-line wave number parameter;
determining, by the geophysical data processing system,
a cross-line wave number value for the cross-line wave number
parameter that reconciles the first and second equations', and
processing the geophysical data to determine an up-going
wavefield using the determined cross-line wave number value.
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Application 14/074,190
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Robertsson US 2009/0067285 A1 Mar. 12,2009
Pan US 2013/0028049 A1 Jan. 31,2013
REJECTIONS
I. Claims 1—4, 8—13, 15—19, and 21 stand rejected under
35 U.S.C. § 102(a)(1) as anticipated by or, in the alternative,
under 35 U.S.C. § 103 as being unpatentable over, Robertsson.
Final Act. 2—5.
II. Claims 5—7, 14, and 20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Robertsson and Pan. Id. at 6—8.
ANALYSIS
New Ground of Rejection — Claims 1—21 as indefinite
Pursuant to our authority under 37 C.F.R. § 41.50(b), claims 1—21 are
rejected under 35 U.S.C. § 112(b) as being indefinite.
In determining whether a claim is definite under 35 U.S.C. § 112(b),
“[t]he USPTO, in examining an application, is obliged to test the claims for
reasonable precision.” In re Packard, 751 F.3d 1307, 1313 (Fed. Cir. 2014).
“[A] claim is indefinite when it contains words or phrases whose meaning is
unclear.” Id. at 1322 (citing MPEP § 2173.05(e)).
Independent claim 1 recites, in relevant part, “determining ... a cross-
line wave number value for the cross-line wave number parameter that
reconciles the first and second equations.” Appeal Br. 18, Claims App.
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Application 14/074,190
(emphasis added). Independent claim 11 similarly recites “determining a
cross-line wave number value for the cross-line wave number parameter that
reconciles the first and second sets of data in the wave separation model.”
Id. at 20. Independent claim 17 similarly recites “determine a cross-line
wave number value that reconciles the first and second equations at a given
datum level.” Id. at 21. The scope of determining a value that “reconciles”
first and second equations or first and second sets of data is unclear.
An ordinary meaning of “reconcile” is “to make consistent or
congruous.” Merriam-Webster’s Collegiate Dictionary (11th ed. 2003).
Given this ordinary meaning, it is unclear what is meant by determining a
cross-line wave number value that “reconciles” (i.e., makes consistent or
congruous) the first and second equations or first and second data.
Appellant’s Specification describes “reconciling equations (11) and (12)
such that Pul and PU2 are the [sic] roughly equivalent.” Spec. 159 (emphasis
added). The Specification also describes that, “[i]n embodiments in which
two wave separation equations are associated with the same datum level,
reconciling the two equations involves finding a parameter such that the
equations give substantially the same result.” Id. (emphasis added). The
Specification also describes that “determining a parameter that reconciles
sets of data in a wave separation model refers to determining a parameter
that gives the most similar results for the two sets of data.” Id. 1 62
(emphasis added).
In other words, the Specification indicates that “reconciling” the
equations or data sets amounts to an approximation, such that a number of
different values could “reconcile” the equations or data sets, where the
results would be roughly equivalent, substantially the same, or most similar.
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Application 14/074,190
However, the Specification does not set forth any standard or threshold by
which to determine whether a given value for the cross-line wave number
parameter would “reconcile” the equations or data sets such that the results
are roughly equivalent, substantially the same, or most similar. Therefore,
one of ordinary skill in the art would have no way to ascertain the objective
metes and bounds of a cross-line wave number value that reconciles the
equations or data sets without speculating.
In light of the above, claims 1,11, and 17 are “ambiguous, vague,
incoherent, opaque, or otherwise unclear in describing and defining the
claimed invention.” Packard, 751 F.3d at 1311. Dependent claims 2—10,
12—16, and 18—21 inherit this problematic ambiguity. Accordingly, we
conclude that claims 1—21 are indefinite under 35 U.S.C. § 112(b) for failing
to particularly point out and distinctly claim the subject matter which
Appellant regards as the invention.
New Ground of Rejection — Claims 1—21 as directed to
patent-ineligible subject matter
Pursuant to our authority under 37 C.F.R. § 41.50(b), claims 1—21 are
rejected under 35 U.S.C. § 101 as being directed to patent-ineligible subject
matter.
The Supreme Court has set forth “a framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts.” Alice
Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct. 2347, 2355 (2014) (citing Mayo
Collaborative Servs. v. Prometheus Labs, Inc., 132 S. Ct. 1289, 1294
(2012)). Under that framework, we first “determine whether the claims at
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issue are directed to one of those patent-ineligible concepts”—i.e., a law of
nature, a natural phenomenon, or an abstract idea. Id. If so, we secondly
“consider the elements of each claim both individually and ‘as an ordered
combination’ to determine whether the additional elements ‘transform the
nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo,
132 S. Ct. at 1298, 1297). The Supreme Court has described the second part
of the analysis as “a search for an ‘inventive concept’—i.e., an element or
combination of elements that is ‘sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Id. (alteration in original) (quoting Mayo, 132 S. Ct.
at 1294).
Step One: Do the claims recite an abstract idea?
The Federal Circuit has described the first step as a determination of
the “basic character of the claimed subject matter.” Internet Patents Corp. v.
Active Network, Inc., 790 F.3d 1343, 1348 (Fed. Cir. 2015) (citing Bancorp
Servs., L.L.C. v. Sun Life Assurance Co. of Canada, 687 F.3d 1266, 1273—74
(Fed. Cir. 2012)). The Federal Circuit has also indicated that this step
should determine whether a claimed method “recites an abstraction—an
idea, having no particular concrete or tangible form.” Ultramercial, Inc. v.
Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014); see also Alice, 134 S. Ct.
at 2355 (“The ‘abstract ideas’ category embodies ‘the longstanding rule that
“[a]n idea of itself is not patentable.’”” (quoting Gottschalk v. Benson, 409
U.S. 63, 67 (1972) (further quotations and citations omitted)).
Under the first step of the analysis, we determine that independent
claims 1,11, and 17 are directed to an abstract idea. Namely, the claims are
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directed to processing geophysical data with a data processing system. In
particular, claim 1 recites “obtaining” geophysical data, “generating”
information corresponding to wave separation equations, “determining” a
value for a cross-line wave number parameter that reconciles the equations,
and determining an up-going wavefield by “processing” the geophysical data
using the determined cross-line wave number value. See Appeal Br. 18,
Claims App. Independent claims 11 and 17 are directed to non-transitory
computer-readable media and a system, respectively, for performing
operations similar to the steps recited in claim 1. See id. at 19—21.
This activity amounts to receiving information (i.e., “obtaining”
geophysical data) and manipulating the information using an algorithm to
generate/output additional information (i.e., “generating” information,
“determining” a cross-line number value, and “processing” to determine an
up-going wavefield).2 Our reviewing courts have held ineligible under
§ 101 claims that are directed to manipulating existing information, such as
by using algorithms, to generate additional information. See Parker v.
Flook, 437 U.S. 584, 585, 594—96 (1978) (rejecting as ineligible claims
directed to (1) measuring the current value for a variable in a catalytic
conversion process, (2) using an algorithm to calculate an updated “alarm-
limit value” for that variable, and (3) updating the limit with the new value);
Benson, 409 U.S. at 71—72 (rejecting as ineligible claims directed to an
2 Although claims 1,11, and 17 recite the algorithm in words rather
than as a mathematical formula, the claims nevertheless recite an algorithm.
See In re Grams, 888 F.2d 835, 837 n.l (Fed. Cir. 1989) (“It is of no
moment that the algorithm is not expressed in terms of a mathematical
formula. Words used in a claim operating on data to solve a problem can
serve the same purpose as a formula.”).
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Application 14/074,190
algorithm for converting binary-coded decimal numerals into pure binary
form); Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353—54 (Fed. Cir.
2016) (discussing how “collecting information” and “analyzing information
by steps people go through in their minds, or by mathematical algorithms,
without more” are abstract ideas); Digitech Image Techs., LLC v. Elecs.for
Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) (“Without additional
limitations, a process that employs mathematical algorithms to manipulate
existing information to generate additional information is not patent
eligible.”).
In sum, the instant claims are directed to the abstract idea of
manipulating existing information to generate additional information.
Step Two: Is there an inventive concept?
Here, claims 1,11, and 17 are not directed to anything more than a
method that qualifies as an abstract idea (i.e., manipulating existing
information to generate new information) for which a processor is invoked
as a conventional tool. Appellant has not provided any specificity regarding
any particular inventive technology associated with the steps/operations
recited in the claims. The computer elements described in the Specification
and claims (e.g., “data processing system,” “computing device,” and
“processors”) appear to function in a conventional manner to execute
program instructions and operations.
Receiving data and processing data are steps that are well-understood,
routine, and conventional functions of a general-purpose computer, and
Appellant does not provide adequate evidence to the contrary. The
Specification supports this view by discussing only generic elements used in
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performing the steps/operations recited in the claims. See Spec. H 13, 22,
46, 53, 61, 63. For example, the Specification describes “a computing
system (not shown separately) for, inter alia, processing data from
geophysical sensors 22 and 29,” and the “computing system may include
one or more processors configured to execute program instructions to
perform various functionality described herein.” Id. 122.
There is no further description, in the claims or the Specification, of
any particular technology for performing the steps recited in the claims other
than generic computer components used in their ordinary capacity as tools to
perform mathematical operations to apply the abstract idea. In this regard,
the “recitation of generic computer limitations does not make an otherwise
ineligible claim patent-eligible.” DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1256 (Fed. Cir. 2014) (citing Alice, 134 S. Ct. at 2358). In
sum, claims 1,11, and 17 are directed merely to ordinary functionality of a
generic processor (e.g., manipulating data to generate new data), and not to a
specific application of computation and analysis designed to achieve an
improved technological result.
For the above reasons, the recited elements, considered individually
and as an ordered combination, do not constitute an “inventive concept” that
would transform independent claims 1,11, and 17 into patent-eligible
subject matter. See Alice, 134 S. Ct. at 2355. Likewise, we find nothing in
dependent claims 2—10, 12—16, or 18—21 to be sufficiently transformative so
as to render these claims patent eligible. Accordingly, we reject claims 1—21
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter.
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Rejections I and II—Anticipation and Obviousness
We do not sustain the Examiner’s rejections of claims 1—21 under
35 U.S.C. §§ 102(a)(1) or 103. For the reasons explained in detail supra,
claims 1—21 are indefinite. Before a proper review of these rejections can be
performed, the subject matter encompassed by the claims on appeal must be
reasonably understood without resort to speculation. Therefore, since the
claims fail to satisfy the requirements of 35 U.S.C. § 112(b), we are
constrained to reverse, pro forma, the prior art rejections because they
necessarily are based on speculative assumptions as to the scope of the
claims. See In re Steele, 305 F.2d 859, 862—63 (CCPA 1962) (holding that
the Board erred in affirming a rejection of indefinite claims because the
rejection was based on speculative assumptions as to the meaning of the
claims). We emphasize, however, that our decision in this regard is based
solely on the indefmiteness of the claimed subject matter, and does not
reflect on the adequacy of the prior art evidence applied in support of the
rejections.
DECISION
We ENTER A NEW GROUND OF REJECTION of claims 1-21
under 35 U.S.C. § 112(b) as being indefinite.
We ENTER A NEW GROUND OF REJECTION of claims 1-21
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter.
We REVERSE, pro forma, the Examiner’s decision rejecting
claims 1—4, 8—13, 15—19, and 21 under 35 U.S.C. § 102(a)(1) as anticipated
by or, in the alternative, under 35 U.S.C. § 103 as being unpatentable over,
Robertsson.
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Application 14/074,190
We REVERSE, pro forma, the Examiner’s decision rejecting
claims 5—7, 14, and 20 under 35 U.S.C. § 103 as being unpatentable over
Robertsson and Pan.
FINALITY OF DECISION
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. . . .
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
REVERSED: 37 C.F.R $ 41.50(b)
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