Ex Parte Hocker

Patent Trial and Appeal Board

Feb 27, 2019

13475203 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/475,203 05/18/2012 Christian Hocker
87884 7590 03/01/2019
Mossman, Kumar and Tyler, PC
P.O. Box 421239
Houston, TX 77242
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.
RDS4-52320-US 1951
EXAMINER
COTHRAN, BERNARD E
ART UNIT PAPER NUMBER
2128
NOTIFICATION DATE DELIVERY MODE
03/01/2019 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):
docket@mktlaw.com
tthigpen@mktlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTIAN HOCKER
Appeal2018-004269
Application 13/475,203
Technology Center 2100
Before JOHN A. JEFFERY, LARRY J. HUME, and SCOTT B. HOWARD,
Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-15, 17-19, 21, 23, and 24. We have jurisdiction
under 35 U.S.C. § 6(b ). We affirm.
1 Appellant identifies the real party in interest as Baker Hughes, a GE
company. App. Br. 1.
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Application 13/475,203
STATEMENT OF THE CASE
Appellant's invention models a distribution of properties of
subsurface formations using geo-statistical methods. Specifically, the
outline and internal geometry of a sand belt deposited by meandering river
channels is modeled covering three different scales to describe the
heterogeneity of properties affecting fluid flow in the sand belt. To this end,
symmetry and geometric opposition are analyzed and used to condition the
modeling processes at each scale with auxiliary variables. See generally
Abstract; Spec. ,r 2. Claim 1 is illustrative:
1. A method of developing a hydrocarbon reservoir, the
method comprising:
using at least one processor to define a model of an earth
formation in which at least one component of the model is an
asymmetric geometrical representation of an asymmetric
geological feature, wherein the model represents a division of
the geometry of the representation into two parts along a
division line generated using an estimated relation between
geological characteristics of the two parts, wherein the relation
is indicative of at least one of: (i) symmetry and (ii) geometric
opposition;
using the at least one processor to condition the model
using a measurement of at least one auxiliary variable to
produce a conditioned model including representation of
preserved bodies within each of the two parts, the
representations of preserved bodies generated according to a
pattern corresponding to the division line; and
performing developmental operations based at least in
part on an output of the conditioned model; and
wherein the representation is an analogue of the feature
in isolation and each of the two parts is further modeled as a
group of the preserved bodies showing opposed geometries on
either side of the division line, wherein the preserved bodies are
at a smaller scale than the feature.
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Application 13/475,203
THE REJECTIONS
The Examiner rejected claims 1-15, 17-19, 21, 23, and 24 under 35
U.S.C. § 101 as directed to an abstract idea. Ans. 2. 2
The Examiner rejected claims 1-3, 6-9, 12, 19, 23, and 24 under 35
U.S.C. § 103 as unpatentable over Hongmei Li, Hierarchic Modeling &
History Matching of Multi-Scale Flow Barriers in Channelized Reservoirs,
Stanford Univ. Doctoral Dissertation (2008) ("Li"); Derek Karssenberg et
al., Conditioning a Process-Based Model of Sedimentary Architecture to
Well Data, 71 J. Sedimentary Res. 868-78 (2001) ("Karssenberg"); James
(US 2003/0233217 Al; published Dec. 18, 2003); Alan D. Howard,
Modeling Channel Migration & Floodplain Sedimentation in Meandering
Streams, in LOWLAND FLOODPLAIN RIVERS: GEOMORPHOLOGICAL
PERSPECTIVES (P.A. Carling & G. E. Petts ed. 1992) ("Howard"); and
Jennifer G. Duan & Pierre Y. Julien, Numerical Simulation of Meandering
Evolution, 391 J. HYDROLOGY 34--46 (2010) ("Duan"). Ans. 5-25.
The Examiner rejected claims 4, 5, 10, 11, and 17 under 35 U.S.C.
§ 103 as unpatentable over Li, Karssenberg, James, Howard, Duan, and
Xiaoye Liu & Zhenyu Zhang, Ground Truth Extraction from LiDAR Data
for Image Orthorectification, INT'L WORKSHOP ON EARTH OBSERVATION &
REMOTE SENSING APPLICATIONS, IEEE (2008) ("Liu"). Ans. 25-27.
The Examiner rejected claims 13-15 and 18 under 35 U.S.C. § 103 as
unpatentable over Li and James. Ans. 27-30.
2 Throughout this opinion, we refer to ( 1) the Appeal Brief filed
October 9, 2017 ("App. Br."); (2) the Examiner's Answer mailed
January 11, 2018 ("Ans."); and (3) the Reply Brief filed March 12, 2018
("Reply Br.").
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Application 13/475,203
The Examiner rejected claim 21 under 35 U.S.C. § 103 as
unpatentable over Li, Karssenberg, James, Howard, Duan, and J. L. Glenn,
Gravel Deposits in the Willamette Valley Between Salem and Oregon City,
Oregon, 24 The ORE Bin 33--48 (1962). Ans. 30-31.
THE INELGIBILITY REJECTION
The Examiner determines that the claims are directed to an abstract
idea, namely organizing and manipulating information through mathematical
correlations by ( 1) defining a model of an earth formation; (2) conditioning
the model using a measurement of an auxiliary variable; and (3) performing
a development operation based at least partly on the conditioned model's
output, the latter of which is said to merely estimate various factors
associated with hydrocarbon reservoir development. See Ans. 2--4. The
Examiner adds that the claims do not include additional elements that add
significantly more than the abstract idea, but merely recite conventional
computer functions. Id. at 4. Based on these determinations, the Examiner
concludes that the claims are ineligible under§ 101. Id. at 2--4.
Appellant argues that the claimed invention is not directed to an
abstract idea. Reply Br. 5-7. According to Appellant, not only does the
claimed invention satisfy the machine-or-transformation test, but it also
recites an unconventional solution to a technological problem specific to
facies modeling. Id.
ISSUE
Under§ 101, has the Examiner erred in rejecting claims 1-15, 17-19,
21, 23, and 24 as directed to ineligible subject matter? This issue turns on
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Application 13/475,203
whether the claims are directed to an abstract idea and, if so, whether recited
elements----considered individually and as an ordered combination-
transform the nature of the claims into a patent-eligible application of that
abstract idea.
PRINCIPLES OF LAW
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. See, e.g., Alice Corp. v. CLS Bank Int 'l, 573 U.S.
208,216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611 );
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
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Application 13/475,203
mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 191 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). That
said, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment." Id. at 176 (citing Benson and Flook); see, e.g., id. at 187 ("It
is now commonplace that an application of a law of nature or mathematical
formula to a known structure or process may well be deserving of patent
protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must 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." Alice, 573 U.S. at 221 (quotation marks and citation omitted).
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"A claim that recites an abstract idea must include 'additional features' to
ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea]."' Id. (quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
In January 2019, the USPTO published revised guidance on the
application of§ 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) ("Guidance"). Under that
guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human interactions such as a fundamental economic practice, or
mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP §§ 2106.05(a}-(c), (e}-(h)).
See Guidance, 84 Fed. Reg. at 52, 55-56. Only if a claim (1) recites a
judicial exception, and (2) does not integrate that exception into a practical
application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
well-understood, routine, and conventional in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Guidance, 84 Fed. Reg. at 56.
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ANALYSIS
Alice/Mayo Step One
Independent claim 1 recites a method of developing a hydrocarbon
reservoir where a processor is used to define a model of an earth formation
in which at least one model component is an asymmetric geometrical
representation of an asymmetric geological feature, where the model
represents a division of the representation's geometry into two parts along a
division line. The processor is also used to condition the model using a
measurement of at least one auxiliary variable to produce a conditioned
model including representations of preserved bodies within each part, where
the representations are generated according to a pattern corresponding to the
division line. The claim adds that developmental operations are performed
based at least partly on an output of the conditioned model, where (1) the
representation is an analogue of the feature in isolation, (2) each part is
further modeled as a group of preserved bodies showing opposed geometries
on either side of the division line, and (3) the preserved bodies are at a
smaller scale than the feature.
As shown in Appellant's Figure 1, Appellant's modeling process is
hierarchical and involves three levels, levels 1 to 3, that correspond to large
scale, medium scale, and small scale, respectively. Spec. ,r 12. Each level's
simulation results are obtained using associated elements or "training
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Application 13/475,203
images" 111, 121, 131, where the results are conditioned 3 to honor their
respective auxiliary variables4 115, 125, 135. Spec. ,r 13.
Level 1 relates to large-scale depositional features ( e.g., on a
kilometer scale) and is shown in the two-dimensional model of Figures 2(a)
to 2(c). 5 Spec. ,r 14. Figure 2(a) shows the overall structure of the belts of a
meandering river, where the belts are separated into left and right sides,
respectively. Spec. ,r 15. Figure 2( c) shows an image of an auxiliary
variable that may be related to direct geophysical measurements, such as
( 1) seismic data; (2) any of seismic attributes or derivatives ( amplitude,
velocity, absorption, instantaneous phase, instantaneous frequency); or
(3) another geophysical measurement indicating the channels' boundaries.
Spec. ,r 16. The large-scale channel model of Figure 2(b) results from using
the auxiliary variable. Id.
Level 2's medium-scale modeling (e.g., on scale ofhundreds of
meters) is shown in Figures 3 (a) to 3 ( c) that feature point bar deposits
preserved after lateral movement of meandering river channels. Spec. ,r 17.
Figure 3( c) shows the result of conditioning by the auxiliary variable
3 According to the Specification's paragraph 19, "conditioning" refers to
matching a model using inferential information, as understood by one of
skill in the art, in contrast to force fitting the model to well data.
4 According to the Specification's paragraph 16, an auxiliary variable may
be related to direct geophysical measurements, such as (1) seismic data; (2)
any of seismic attributes or derivatives (amplitude, velocity, absorption,
instantaneous phase, instantaneous frequency); or (3) another geophysical
measurement indicating channel boundaries.
5 Although the Specification refers to Figures 2(a), 2(b ), etc., the figures
themselves are labeled without the letter in parentheses, ( e.g., "FIG. 2A").
Nevertheless, we refer to the figures as they are labeled in the Specification
for clarity and consistency.
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Application 13/475,203
measured in Figure 2(b ), effectively combining the second-level image 301
in Figure 3(a) with the first-level image in Figure 2(b). Spec. ,r,r 19--20.
Level 3 's small-scale modeling is shown in Figures 4( a) to 4( c)
featuring the effects of lateral accretion and abandonment fills marking the
end of a point bar's life cycle. Spec. ,r 23. Figure 4( c) shows the result of
conditioning by the auxiliary variable measured in Figure 3 ( c ), and
effectively combines the third-level image 401 in Figure 4(a) with the
second-level model in Figure 3(b ). Spec. ,r,r 24--25.
Because the resulting models are based on "ground truth,"6 they
enable performing further developmental operations based on those models.
See Spec. ,r 26. For example, the models can facilitate reservoir simulation
to assist in developing real-world recovery methods. Id. To this end, the
models enable estimating quantities, such as sweep efficiency, to evaluate
different patterns in secondary recovery operations. Id. In addition, the
models can enable estimating reservoir permeability that is valuable in
estimating the amount of recoverable hydrocarbons in-place. Id.
Turning to claim 1, we first note that the claim recites a series of steps
and, therefore, falls within the process category of§ 101. But despite falling
within this statutory category, we must still determine whether the claim is
directed to a judicial exception, namely an abstract idea. See Alice, 573 U.S.
at 217. To this end, we must determine whether (1) the claim recites a
judicial exception, and (2) fails to integrate the exception into a practical
6 See generally Spec. ,r 3 (noting that modeling-based training images
describing subsurface geological formations may be derived on outcrop
analysis, well log interpretation, seismic data, and general experience
( otherwise referred to as "ground truth")).
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application. See Guidance, 84 Fed. Reg. at 52-55. If both elements are
satisfied, the claim is directed to a judicial exception under the first step of
the Alice/Mayo test. See id.
In the rejection, the Examiner determines that claim 1 is directed to
the abstract idea of organizing and manipulating information through
mathematical correlations by ( 1) defining a model of an earth formation;
(2) conditioning the model using a measurement of an auxiliary variable;
and (3) performing a development operation based at least partly on the
conditioned model's output, the latter of which is said to merely estimate
various factors associated with hydrocarbon reservoir development. See
Ans. 2--4.
To determine whether a claim recites an abstract idea, we (1) identify
the claim's specific limitations that recite an abstract idea, and (2) determine
whether the identified limitations fall within certain subject matter
groupings, namely (a) mathematical concepts 7; (b) certain methods of
organizing human activity8; or ( c) mental processes. 9 First, despite the
7 Mathematical concepts include mathematical relationships, mathematical
formulas or equations, and mathematical calculations. See Guidance, 84
Fed. Reg. at 52.
8 Certain methods of organizing human activity include fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). See Guidance, 84 Fed. Reg. at 52.
9 Mental processes are concepts performed in the human mind including an
observation, evaluation, judgment, or opinion. See Guidance, 84 Fed. Reg.
at 52.
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Examiner's characterizing the claimed invention as directed to organizing
and manipulating information through mathematical correlations (Ans. 3--4),
the claim does not recite mathematical relationships, formulas, equations, or
calculations that fall within the distinct mathematical concepts category
noted above. Nor do we determine that the claim recites methods of
organizing human activity that fall within that enumerated category.
To be sure, defining and conditioning a model of an earth formation,
without more, could arguably be performed mentally apart from the recited
processor. Notably, the claim does not specify how the model is so defined
or conditioned, apart from reciting various details and relationships of the
represented features, and that a measurement of an auxiliary variable is used
to produce the conditioned model. We reach a similar conclusion regarding
the recited performing a development operation based at least partly on the
conditioned model's output, for these development operations can involve
merely estimating various factors associated with hydrocarbon reservoir
development as the Specification's paragraph 26 indicates----estimations that
could be performed entirely mentally. Accord Ans. 3 (noting these
estimations in this paragraph and dependent claim 6).
Although the claim recites an abstract idea based on these mental
processes, we nevertheless must still determine whether the abstract idea is
integrated into a practical application, namely whether the claim applies,
relies on, or uses the abstract idea in a manner that imposes a meaningful
limit on the abstract idea, such that the claim is more than a drafting effort
designed to monopolize the abstract idea. See Guidance, 84 Fed. Reg. at 54--
55. To this end, we (1) identify whether there are any additional recited
elements beyond the abstract idea, and (2) evaluate those elements
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Application 13/475,203
individually and collectively to determine whether they integrate the
exception into a practical application. See id.
Turning to the claim, we first note that merely reciting a method of
developing a hydrocarbon reservoir in the preamble does not, without more,
integrate the abstract idea into a practical application, for merely generally
linking the use of an abstract idea to a particular technological environment
or field of use does not render the claims any less abstract. See Affinity Labs
of Texas, LLC v. DirecTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016); see
also Guidance, 84 Fed. Reg. at 55 (citing MPEP § 2106.05(h)); accord
Flook, 437 U.S. at 584, 588-90, 596-97 (holding ineligible method for
updating an alarm limit on a process variable, despite the process involving
the catalytic chemical conversion of hydrocarbons).
Nevertheless, a key aspect of the claimed invention is that an auxiliary
variable's measurement is used to produce a conditioned model. As the
Specification explains, these measurements may be related to direct
geophysical measurements, such as (1) seismic data; (2) any of seismic
attributes or derivatives (amplitude, velocity, absorption, instantaneous
phase, instantaneous frequency); or (3) another geophysical measurement
indicating channel boundaries. Spec. ,r 16. As noted above in connection
with the Specification's description in paragraphs 14 to 25, these
geophysical measurements essentially transform the models at various levels
to conditioned models based on those auxiliary variable measurements,
effectively increasing the level of detail and complexity at different scales as
shown in Appellant's Figures 2(b), 3(c), and 4(c) reproduced below.
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