Ex Parte Liu et al

Patent Trial and Appeal Board

Aug 31, 2016

12694375 (P.T.A.B. Aug. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/694,375 01127/2010
28116 7590 09/02/2016
WestemGeco L.L.C.
10001 Richmond Avenue
IP Administration Center of Excellence
Houston, TX 77042
FIRST NAMED INVENTOR
QinglinLiu
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.
14.0514-US-NP 5902
EXAMINER
MURPHY, DANIELL
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
09/02/2016 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):
USDocketing@slb.com
jalverson@slb.com
SMarckesoni@slb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte QINGLIN LIU and KAMBIZ IRANPOUR
Appeal2014-009218
Application 12/694,375
Technology Center 3600
Before LYNNE H. BROWNE, THOMAS F. SMEGAL, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner's
decision rejecting claims 1-12, 14-20, and 22-24. 1 App. Br. 5.
1 Claims 13 and 21 have been withdrawn. Appellants indicate that only
claims 1, 6, 8, 9, 14, 16, 17, 22, and 24 are subject to this appeal, however,
we review claims 1-12, 14-20, and 22-24 as subject to standing rejections
set forth in the Final Office Action dated June 7, 2013 ("Final Act."), as
further modified in the Advisory Action dated September 27, 2013 ("Adv.
Act."), from which this appeal is taken.
Appeal2014-009218
Application 12/694,375
vVe AFFIR~vf-IN-PART and enter a NEvV GROlJ1'-JD OF
REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b).
CLAIMED SUBJECT MATTER
Claims 1, 9, and 17, reproduced below, are the independent claims on
appeal. Claim 1, reproduced below, is representative of the claims on
appeal.
1. A method comprising:
receiving seismic data acquired in a seismic survey, the
seismic data representing energies from multiple seismic sources
overlapping in at least one of time and space; and
performing quality control analysis on a given trace
indicated by the seismic data, the performing comprising:
determining a median trend of amplitudes determined
from other traces associated with sensor positions near a sensor
position associated with the given trace, the determining
comprises determining the median trend over a time window
shared in common by the given trace and the other traces; and
selectively accepting or rejecting the given trace based on
the median trend.
9. A system comprising:
an interface to receive seismic data acquired in a seismic
survey, the seismic data representing energies from multiple
seismic sources overlapping in at least one of time and space; and
a processor to perform quality control analysis on a given
trace indicated by the seismic data, the processor adapted to:
determine a median trend of amplitudes determined from
other traces associated with sensor positions near a sensor
position associated with the given trace;
determine the median trend over a time window shared in
common by the given trace and the other traces; and
selectively accept or reject the given trace based on the
median.
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17. An article comprising a computer readable storage
medium storing instructions that when executed by a computer
cause the computer to:
receive seismic data acquired in a seismic survey, the
seismic data representing energies from multiple seismic sources
overlapping in at least on of time and space; and
perform quality control analysis on a given trace indicated
by the seismic data by determining a median trend of amplitudes
determined from other traces associated with sensor positions
near a sensor position associated with the given trace,
determining the median trend over a time window shared in
common by the given trace and the other traces, and selectively
accepting or rejecting the given trace based on the median trend.
REJECTIONS
I. Claims 1, 3-5, and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Laake (US 6,772,068 B2; iss. Aug. 3, 2004), Tulett (US
7,359,282 B2; iss. Apr. 15, 2008), and Houck (US 6,148,264; iss. Nov. 14,
2000).
II. Claims 2 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Laake, Tulett, Houck, and Jones (US 6,697,737 B2; iss.
Feb. 24, 2004).
III. Claim 8 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Laake, Tulett, Houck, and Jeffryes (US 6,519,533 Bl; iss.
Feb. 11, 2003).
IV. Claims 9, 11, 12, and 15 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Laake, Tulett, Houck, and Ahem (US
4,759,636; iss. July 26, 1998).
V. Claims 10 and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Laake, Tulett, Houck, Ahem, and Jones.
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VI. Claim 16 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Laake, Tulett, Houck, Ahem, and Jeffryes.
VII. Claims 17 and 23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Laake, Tulett, Houck, and Burkholder (US 6,934,219 B2;
iss. Aug. 23, 2005).
VIII. Claims 18-20 and 22 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Laake, Tulett, Houck, Burkholder, and Jones.
IX. Claim 24 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Laake, Tulett, Houck, Burkholder, and Jeffryes.
ANALYSIS
Rejection I
Regarding independent claim 1, the Examiner found, inter alia, that
Laake teaches the step of "performing quality control analysis on a given
trace indicated by the seismic data." Final Act. 5 (citing Laake 1:66-2:10).
The Examiner determined that Laake "does not teach that in the seismic
survey, energy from multiple seismic sources overlaps in at least one of time
and space," as required by claim 1, and relied on Tulett for teaching "energy
from multiple seismic sources overlapping in at least one of time and space."
Id. (citing Tulett 9:19-30). The Examiner reasoned that it would have been
obvious
Id.
to utilize a method comprising: receiving seismic data acquired
in a seismic survey; and performing quality control analysis on a
given trace indicated by the seismic data as taught by Laake, in
combination with energy from multiple seismic sources
overlapping in at least one of time and space as taught by Tulett,
since such combination provides higher quality seismic data for
quality control efforts.
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The Examiner also determined, inter alia, that Laake does not teach
"selectively accepting or rejecting the given trace based on a median trend,"
as required by claim 1, and relied on Houck for teaching "selectively
accepting or rejecting the given trace based on a median trend of other
amplitudes determined from other traces associated with sensor positions
near a sensor position associated with the given trace" (id. at 5-6 (citing
Houck, Abstract, 3:59-61, 9:8-26, Figs. 4, 8)), and therefore, suggesting that
"the determining comprises determining the median trend over a time
window shared in common by the given trace and the other traces," as
required by claim 1 (id. at 6). The Examiner reasoned that it would have
been obvious
to utilize a method ... [for] performing quality control analysis
on a given trace indicated by the seismic data as taught by Laake,
in combination with determining a median trend of amplitudes .
. . as suggested by Houck, since such combination provides
improved techniques for efficiently processing the data and for
real time data quality control.
Id. at 6.
First, Appellants argue that "Houck fails to disclose performing
quality control analysis on a given trace, which includes selectively
accepting or rejecting the given trace based on a determined median trend of
amplitudes determined form other traces." App. Br. 12. In support,
Appellants submit that "Houck discusses 'editing the target trace"' by
"modifying a trace to remove a 'noisy' portion of the trace." Id. (citing
Houck 6:63-67, 7:1-9, 9:34-35, 49-53, 66-67, 10:1); see also Reply Br. 1.
However, we determine that a preponderance of the evidence supports the
Examiner's finding that Houck discloses selectively accepting or rejecting a
given trace, in addition to selectively accepting or rejecting (or modifying) a
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portion of a given trace. In particular, Houck states that "[ o ]nee a
determination is made that noise is present in part or all of a trace, that
trace, or at least the 'noisy' portion, is modified to reduce the detrimental
effect of the noise." Houck 6:65-7:1 (emphasis added). Moreover, Houck
discloses that such modification includes removal. Id. at 7:2, see also id. at
5:19.
Second, Appellants argue that Houck's method for removing seismic
noise is not a quality control analysis, and more specifically, that Houck' s
discussion of "a purported prior art algorithm ... is for [the] purpose[] of
noise reduction in the context of stacking, not in the context of a quality
control analysis." App. Br. 12 (citing Houck 3:59-61). However,
Appellants' argument fails to address the Examiner's reliance on Laake, not
Houck, for the disclosure of performing quality control analysis on a given
trace indicated by the seismic data, and the Examiner's proposed
modification of Laake's quality control analysis, in view of Houck's
teachings, as stated supra. See also Ans. 14.
Third, again referring to the prior art algorithm for noise reduction
that is presented in the Background Section of Houck, Appellants contend
that "Houck teaches away from discarding samples in a quality control
analysis, and furthermore, the 'samples' ... are not traces, but rather,
samples of a given trace," concluding that "[a]s such, the skilled artisan
would not have derived selectively accepting or rejecting a given trace based
on a median trend of amplitudes determined from other traces." App. Br.
12-13 (citing Houck 3:59-61). However, Appellants fail to explain how
Houck's discussion of the prior art demonstrates error in the Examiner's
findings with respect to Houck's disclosure of making a selective
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determination with regard to the target trace based on a median trend of
amplitudes determined from other traces, in that Houck states that "[t]he
RMS average of the target trace in each time window is compared to the
median of the RMS averages of the comparison traces from the comparable
time windows" and that "[i]f the RMS average of the target trace in a given
time window exceeds the comparison traces' median value by more than a
user-specified threshold factor, that window in the target trace is classified
as noise and flagged for removal." Houck 9:41--44, 49-53. Although in this
preferred embodiment Houck refers to the "window" in the target trace,
Houck also states more generally, as discussed supra, that"[ o ]nee a
determination is made that noise is present in part or all of a trace, that
trace, or at least the 'noisy' portion, is modified to reduce the detrimental
effect of the noise." Houck 6:65-7:1 (emphasis added). A reference
disclosure is not limited only to its preferred embodiments, but is available
for all that it discloses and suggests to one of ordinary skill in the art. In re
Lamberti, 545 F.2d 747, 750 (CCPA 1976). Thus, we determine that a
preponderance of evidence supports the Examiner's findings with respect to
Houck.
Accordingly, we sustain the Examiner's rejection of independent
claim 1. Appellants chose not to present separate arguments for the
patentability of claims 3-5 and 7 depending from claim 1, and therefore, we
also sustain the Examiner's rejection of claims 3-5 and 7. App. Br. 5, 11-
19; Reply Br. 1-2.
Rejections IL V, and VIII
Claim 6, which depends from independent claim 1, recites
"selectively performing the quality control analysis based on proximity of
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the given trace to a seismic source." App. Br. 20 (Claims App.). Regarding
claim 6, the Examiner relied on Jones for teaching "enhancing quality
control of acquired seismic data ... including arranging the data in a quality
control cube, whose axes can contain one or more of source position,
receiver position, or source-receiver offset," reasoning that Jones therefore
suggests "selectively performing the quality control analysis based on
proximity of the given trace to a seismic source." Final Act. 10-11 (citing
Jones 1: 13-17, claim 1 ). Additionally, the Examiner determined that Jones
teaches "perform[ing] subsequent analysis on signals [arranged in a quality
control cube]." Ans. 16 (citing Jones 6:1-22, Fig. 6). Alternatively, the
Examiner found that "Houck appears to teach [the limitation of claim 6]."
Id. (citing Houck [7]:42-55, equation (1 )).
Appellants correctly argue that Jones teaches "performing control
analysis and visually representing this analysis as a function of distance from
the source," but fails to disclose "selectively performing the quality control
analysis based on proximity of the given trace to a seismic source," as
recited in claim 6. Further, the Examiner fails to provide support for
reasoning that Jones suggests the limitations of claim 6. In addition,
although the coordinates of the source location for the target trace are used
as variables in Houck' s equation ( 1 ), Houck' s equation ( 1) is used to select
the comparison traces, not the target trace, for performing quality control
analysis. See Houck 7: 9-12 (equation ( 1) is used "to select the traces for
comparing to the target trace to be analyzed for the presence of noise").
Houck simply discloses that "each trace in the survey is analyzed for the
presence of noise." Houck 6:63-65.
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Accordingly, we do not sustain the Examiner's rejection of claim 6.
The Examiner relied on the same findings with respect to Jones for rejecting
claims 14 and 22, which depend from independent claims 9 and 17, as the
Examiner relied upon for rejecting claim 6. Final Act. 18-19, 26.
Therefore, for the reasons stated supra with respect to claim 6, we also do
not sustain the Examiner's rejection of claims 14 and 22.
Appellants chose not to present arguments for the patentability of
claims 2, 10, and 18-20, which depend from independent claims 1, 9, and
17. App. Br. 5, 11-19; Reply Br. 1-2. Because we sustain the Examiner's
rejections of independent claims 1 supra and independent claims 9 and 17
infra, we also sustain the Examiner's rejection of claims 2, 10, and 18-20.
Rejections III, VI, and IX
Claim 8, which depends from independent claim 1, recites "wherein
the seismic survey comprises one of the following: an independent
simultaneous source survey, a slip sweep survey and a distant separated
simultaneous source survey." App. Br. 20 (Claims App.). The Examiner
found that "Jeffryes teaches a seismic survey that comprises ... an
independent simultaneous source survey, a slip sweep survey [or] a distant
separated simultaneous source survey." Final Act. 11 (citing Jeffryes 1:26-
35, 2:16-21). The Examiner reasoned that it would have been obvious
to utilize the method of claim 1 as taught by Laake as modified
by Tulett and Houck, in combination with a seismic survey that
comprises one of the following: an independent simultaneous
source survey, a slip sweep survey and a distant separated
simultaneous source survey as taught by Jeffryes, since such
combination effectively reduces delay time, e.g., between
seismic sweeps, without the detrimental effects of increased
noise, which could result in significant cost savings.
Id. at 11-12.
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Appellants argue that claim 8 "requires that the survey of claim 1 is
one in which the sources purposefully overlap in at least one of time and
space" (App. Br. 14) and therefore, "one source for each shot is not assumed
for the data" (App. Br. 15 (citing Spec. iJ 20). Appellants submit that Houck
discusses two instances involving multiple sources: (i) "other seismic ships
in the same general vicinity;" and (ii) a "3D seismic survey." App. Br. 14-
15 (citing Houck 6:4-5, 9:8-10). Appellants argue that
[a ]lthough "noise" due to other seismic ships may hypothetically
be due to seismic source energies that overlap in time and/or
space, Houck does not contemplate application of its noise
removal technique to a seismic survey in which energies from
multiple seismic sources overlap in time and/or space, such [as]
any of the surveys enumerated in claim 8.
Id. at 15; Reply Br. 1-2. Appellants also argue that, with regard to the 3D
seismic survey, "Houck focuses on first sorting the data to form shot records
and then using comparison traces from different shot records: 'the traces
selected in the 3D case for comparison to a target trace preferably do not
include traces from the same shot record which product the target trace."'
App. Br. 15 (citing Houck 9:27-31). Appellants conclude that "no plausible
reason has been advanced [by the Examiner] to explain why the skilled
artisan would have applied Houck's shot record-based analysis to data
acquired in any of the surveys expressly recited in claim 8." Id.
Appellants' argument does not address the Examiner's finding that
Tulett, not Houck, teaches seismic data representing energy from multiple
seismic sources overlapping in at least one of time and space or the
Examiner's proposed combination, as stated supra. Moreover, Houck's 3D
seismic ship 200, as depicted in Figure 6, contemplates two sources 212 (see
Houck 8:66-67), and although Houck discloses that"[ o ]mitting traces from
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the same shot record as the target trace is preferred because those traces will
likely also be infected with the noise if the target trace is so infected," one of
ordinary skill in the art would understand that Houck discloses using traces
from the same shot record as a viable (albeit less preferred) option. Houck
7: 18-22 (emphasis added). Appellants' arguments also do not apprise us of
error in the Examiner's reliance on Jeffryes or persuade us of error in the
Examiner's stated reasoning for combining Jeffryes with Laake, Houck, and
Tulett.
Accordingly, we sustain the Examiner's rejection of claim 8. Claims
16 and 24, which depend from independent claims 9 and 17, recite the same
limitation as claim 8, and the Examiner relied on the same findings with
respect to Laake, Houck, Tulett, and Jeffryes for rejecting claims 16 and 24
as the Examiner relied upon for rejecting claim 8. Final Act. 19, 26-27.
Therefore, for the reasons stated supra with respect to claim 6, we also
sustain the Examiner's rejection of claims 16 and 24.
Appellants chose not to present arguments for the patentability of
claims 2, 10, and 18-20, which depend from independent claims 1, 9, and
17. App. Br. 5, 11-19; Reply Br. 1-2. Because we sustain the Examiner's
rejections of independent claim 1 supra and independent claims 9 and 1 7
infra, we also sustain the Examiner's rejection of claims 2, 10, and 18-20.
Rejections IV and VII
Regarding independent claims 9 and 1 7, the Examiner relied on
similar findings with respect to Laake, Tulett, and Houck, as discussed
supra, with respect to independent claim 1. Final Act. 12-14, 20-21.
Appellants argue that "Houck fails to disclose or render obvious" the claim
limitation of "performing quality control analysis by selectively accepting or
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rejecting the given trace," for the same reasons stated for claim 1, supra.
App. Br. 16, 18. Because we sustain the Examiner's rejection of claim 1, we
also sustain the Examiner's rejection of claims 9 and 17 for the reasons
stated supra.
Appellants chose not to present separate arguments for the
patentability of claims 11, 12, 13, and 23, which depend from independent
claims 9 and 17, and therefore, we also sustain the Examiner's rejection of
claims 11, 12, 13, and 23. App. Br. 5, 11-19; Reply Br. 1-2.
NEW GROUND OF REJECTION
Section 101 of the Patent Act defines the subject matter eligible for
patent protection: "Whoever invents or discovers any new and useful
process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title." 35 U.S.C. § 101. The Supreme
Court has explained that la\i:1s of nature, natural phenomena, and abstract
ideas fall outside the scope of this provision and are not patentable subject
matter. Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2354
(2014). For example, abstract ideas include, but are not limited to,
fundamental economic practices, methods of organizing human activities, an
idea of itself, and mathematical formulas or relationships. Id. at 2355-57.
The Court in Alice emphasized the use of the two-step framework for
analysis of patentability set forth in Mayo Collaborative Services v.
Prometheus Laboratories, Inc., 132 S. Ct. 1289, 1297 (2012):
First, we determine whether the claims at issue are
directed to one of those patent-ineligible concepts. If so, we then
ask, "[ w ]hat else is there in the claims before us?" To answer
that question, we consider the elements of each claim both
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individually and 'as an ordered combination' to determine
whether the additional elements 'transform the nature of the
claim' into a patent-eligible application.
Alice, 134 S. Ct. at 2355 (quoting Mayo, 132 S. Ct. at 1298, 1297).
We begin our analysis by applying the first step of the Mayo test. As
stated supra, the independent claims recite, in relevant part (i) a method
comprising the steps of receiving seismic data and performing quality
control analysis on a given trace indicated by the seismic data by
determining a median trend and selectively accepting or rejecting the given
trace based on the median trend (claim 1 ); (ii) a system comprising an
interface and a processor for receiving seismic data and performing quality
control analysis, according to the steps of claim 1 (claim 9); and (iii) an
article comprising a computer readable storage medium storing instructions
that, when executed by a computer, cause the computer to receive seismic
data and perform quality control analysis, according to the steps of claim 1
(claim 17). Dependent claims 2-8, 10-12, 14-16, 18-20, and 22-24 further
qualify the data collection or further limit the steps of the analysis.
Stating that "information as such is an intangible," the Federal Circuit
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." Electric Power Group, LLC v. Alstom S.A., p. 3,
2016 WL 4073318 (Aug. 1, 2016) (citations omitted). The Federal Circuit
has also "treated analyzing information by steps people go through in their
minds, or by mathematical algorithms, without more, as essentially mental
processes within the abstract category." Id. (citations omitted). Here, the
Specification describes the invention as "a technique" which "may be used
for quality control where the seismic data overlaps in time and/or space"
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(Spec. lJ 21 ), and the claims are directed to the abstract idea of collecting
seismic data and analyzing the data by applying a mathematical algorithm
and/or mental steps. Thus, we conclude that the claims are directed to an
abstract idea under step one of the Alice analysis.
Applying the second step of the Mayo test, we find nothing sufficient
to remove the claims from the class of subject matter ineligible for patenting.
Independent claim 1, which claims a method as stated supra, specifies
data: "seismic data acquired in a seismic survey, the seismic data
representing energies from multiple seismic sources overlapping in at least
one of time and space," including "a given trace indicated by the seismic
data," and also "other traces associated with sensor positions near a sensor
position associated with the given trace." Claim 1 limits the data to a
particular content, which does not change its character as information.
Claim 1 further includes an analyzing step that applies a mathematical
algorithm and/or mental steps: "determining a median trend of amplitudes
determined from other traces ... , the determining compris[ing] determining
the median trend over a time window shared in common by the given trace
and the other traces; and selectively accepting or rejecting the given trace
based on the median trend." App. Br. 20 (Claims App.). The mathematical
algorithm and/or mental steps of claim 1 specifies a calculation (i.e.,
determining a median trend of amplitudes), which is performed on a subset
of the data (i.e., the other traces), and a subsequent comparison of a subset of
the data (i.e., the target trace) to the mathematical determination or result of
the calculation, wherein the target trace is accepted or rejected. We
determine that these claim elements, individually and as an ordered
combination, do not transform the nature of the claim into a patent-eligible
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application, but rather specify collecting and analyzing information, without
changing the character of the information and according to a mathematical
algorithm and/or mental steps, which as discussed supra, is within the
abstract category. We further determine that the claims depending from
claim 1 also either further qualify the data or data collection (claims 7 and
8), or further limit the mathematical algorithm (claims 2-6), but also fail to
transform the nature of the claim into a patent-eligible application when
considered individually and as an ordered combination.
Independent claim 9, which claims a system as stated supra, requires
"an interface to receive seismic data acquired in a seismic survey" and "a
processor to perform quality control analysis on a given trace indicated by
the seismic data," according to the method steps recited in claim 1. The only
disclosure of an "interface" in the Specification is "interface 18 between
subsurface impedances Im1 and Im2 [that] reflects the signal 15 at points I1,
b, b and l4 to produce a reflected signal 19 that is detected by the geophones
D1, D2, D3 and D4." Spec. ,-i 12. However, this interface in the earth does
not "receive seismic data acquired in a seismic survey," as required by claim
9 (as originally filed). Rather, we understand the claim term "interface" to
be a data acquisition system, such as data acquisition system 14, which
"gathers the raw seismic data acquired by the geophones D1, D2, D3, and D4,
[such that] the raw seismic data may be processed to yield information about
subsurface reflectors and the physical properties of subsurface formations."
Id. The Specification further discloses that
processor system 400 includes a processor 404, which executes
program instructions 412 that are stored in a system memory
410 for purposes of causing the processor 404 to perform some
or all of the [disclosed] techniques. As non-limiting examples,
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the processor 404 may include one or more microprocessors
and/or microcontrollers.
Id. iJ 29. We determine that the claim elements "an interface" and "a
processor," which are computer components, do not add anything that would
transform the nature of the claims from the abstract idea into a patent-
eligible application, because as the Court explained in Alice, implementation
of an abstract idea by a computer does not transform the abstract idea into a
patent-eligible application. Alice, 134 S.Ct. at 2358 ("stating an abstract
idea 'while adding the words "apply it" is not enough for patent
eligibility."') (citations omitted). Thus, when the elements of claim 9 are
considered, either individually or as an ordered combination, the elements
fail to transform the abstract idea into a patent-eligible application. We
further determine that the claims depending from claim 9 either further
qualify the data or data collection (claims 15 and 16), or further limit the
mathematical algorithm (claims 10-12 and 14 ), but also fail to transform the
nature of the claim into a patent-eligible application when considered
individually and as an ordered combination.
Independent claim 17, stated supra, claims "[a Jn article comprising a
readable storage medium storing instructions that when executed by a
computer cause the computer to" collect and analyze seismic data according
to the method steps recited in claim 1. The Specification does not use the
claim term "computer" or describe a "readable storage medium." Although
those of ordinary skill in the art may understand the claim term "readable
storage medium," which is readable by a computer, to include signals per se,
such that claim 17 would cover nonstatutory subject matter (see In re
Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007) (transitory embodiments
are not directed to statutory subject matter)), we determine, more generally,
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that implementation of an abstract idea by a computer that executes
instructions stored on a readable storage medium does not transform the
abstract idea into a patent-eligible application, for the reasons stated supra
with respect to computer implementation and claim 9. Thus, when the
elements of claim 17 are considered, either individually or as an ordered
combination, the elements fail to transform the abstract idea into a patent-
eligible application. We further determine that the claims depending from
claim 17 either further qualify the data or data collection (claims 23 and 24),
or further limit the mathematical algorithm (claims 18-22), but also fail to
transform the nature of the claim into a patent-eligible application when
considered individually and as an ordered combination.
Accordingly, we enter a new ground of rejection of claims 1-12, 14-
20, and 22-24 under 35 U.S.C. § 101 as being directed to non-statutory
subject matter.
DECISION
The Examiner's decision to reject claims 1-5, 7-12, 15-20, 23, and
24 under 35 U.S.C. § 103(a) is AFFIRMED.
The Examiner's decision to reject claim 6, 14, and 22 under 35 U.S.C.
§ 103(a) is REVERSED.
Pursuant to 37 C.F.R. § 41.50(b), we enter a NEW GROUND OF
REJECTION of claims 1-12, 14-20, and 22-24 under 35 U.S.C. § 101 as
being directed to non-statutory subject matter.
This decision contains a new ground of rejection pursuant to 3 7
C.F.R. § 41.50(b). Section 41.50(b) provides "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
Section 41.50(b) also provides:
17
Appeal2014-009218
Application 12/694,375
vVhen the Board enters such a non-final decision, the
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. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under§ 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon ,~1hich rehearing
is sought.
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. § l.136(a). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)
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